Attached files
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EX-99.1 - PRESS RELEASE - S&W Seed Co | exh99-1.htm |
8-K - 8-K - S&W Seed Co | body8k.htm |
EXHIBIT 2.1
Asset Acquisition Agreement |
Seed Genetics International Pty Ltd SV Genetics Pty Ltd
|
Piper Alderman Lawyers www.piperalderman.com.au Adelaide l Sydney l Melbourne l Brisbane © Piper Alderman |
Contents page 1. Definitions 1 2. Interpretation 8 3. Sale and purchase 10 4. Purchase Price 11 5. Business Name 14 6. Assignment of Intellectual Property 14 7. Principals 15 8. Deliverables upon Execution 16 9. Post-Execution 18 10. Transfer of Contracts 19 11. Transfer of manufacturers' warranties 21 12. Receivables 21 13. Creditors 21 14. Products sold before Execution 21 15. No competition 21 16. Warranties 25 17. Limitations on Warranty Claims 25 18. Warranty Claims 28 19 Third party claims 29 20. Guarantee, indemnity and undertaking 30 21. Consent 34 22. Confidentiality 35 23. GST 36 24. Miscellaneous 38 Execution 40 Schedule 1 - Details xlii 1. Contracts xlii 2. Electronic Addresses: xlii 3. Plant and Equipment xlii 4. Plant and Equipment Leases xliii 5. Seller Products xliii 6. Stock (as at week commencing 2 May 2016) xliv Schedule 2 - Warranties xlvii Schedule 3 - Form of Service Agreement lxiii page i
1. Definitions lxiii 2. Interpretation lxv 3. Services lxvi 4. Contractor's staff and sub-contractors lxvii 5. Term lxvii 6. Service Fee lxvii 7. Insurance lxviii 8. Confidentiality lxviii 9. Intellectual Property lxviii 10. Restraint lxix 11. Termination lxx 12. Suspension lxxi 13. Relationship lxxii 14. Warranties lxxii 15. Affiliates, employees and sub-contractors lxxiii 16. Limitations lxxiii 17. GST lxxiv 18. Miscellaneous lxxv 1. Definitions lxxix 2. Interpretation lxxxi 3. Services lxxxii 4. Contractor's staff and sub-contractors lxxxii 5. Term lxxxiii 6. Service Fee lxxxiii 7. Insurance lxxxiv 8. Confidentiality lxxxiv 9. Intellectual Property lxxxiv 10. Restraint lxxxv 11. Termination lxxxvi 12. Suspension lxxxvii 13. Relationship lxxxviii 14. Warranties lxxxviii 15. Affiliates, employees and sub-contractors lxxxix 16. Limitations lxxxix 17. GST xc 18. Miscellaneous xci page ii
Schedule 4 - Accredited Investor Questionnaire xcv Schedule 5 - Net Income Model xcix Schedule 6 - Diagram Chart of line tracing c Schedule 7 - Marketing matrix cxlv Schedule 8 - Terms of current Ravensbourne lease cxlvii Schedule 9 - Contracts cxlviii page iii
Asset Acquisition Agreement Parties Introduction Operative Clauses 1. Definitions In this Agreement: Agreement means this document, the Schedules, and any amending or replacement document undertaken in accordance with this agreement; Approval means an approval, authorisation, exemption, consent, permit, licence, authority, declaration, waiver, registration, filing, agreement, notice on objection, notarisation, or certificate issued to the
Seller, which is necessary, beneficial or incidental in operating the Business and/or in exploiting the Assets; Assets means the Seller's interest in the Approvals, Business Records, Contracts, Electronic Addresses, Goodwill, Intellectual Property, Plant and Equipment, Premises, Receivables, Stock, and all other
assets used in, or necessary, beneficial or incidental to, the operation of the Business but excluding cash and cash equivalents (including bank accounts in the name of the Seller); page 1
Balance Date means the date to which the most recent financial statements and accounts for the Business have been drawn, being 30 June 2015; Balance Date Accounts means the financial statements and accounts for the Business drawn up to the Balance Date; Business means the business of hybrid sorghum and sunflower breeding, production, marketing and distribution carried on by or on behalf of the Seller at the Premises at any location worldwide; Business Day means any day except a Saturday, a Sunday or any other public holiday in South Australia or Queensland; Business Name means the business name "SV Genetics" with registration number BN20502310 which is used by the Seller as its corporate name; Business Records means all financial statements, financial records, customer lists, supplier lists, details of customers and suppliers (including pricing policies and terms of payment), books, records and
documents relating to the Business, Assets, Premises or Employees, except: but excludes the Excluded Records; Buyer means either of SGI and S & W Seed and Buyers means both of them; Claim means debt, cause of action, dispute, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether
at law, in equity, under statute or otherwise; Confidential Information means any information used or obtained by the Seller, its employees, agents or sub-contractors, or the Directors in the Business, including trade secrets, know-how, technical
information and technical drawings, processes, techniques commercial information about the Seller and persons with whom the Seller deals, product and market information, and any information marked
"confidential" and any other confidential information that is necessary, beneficial or incidental to operating the Business and/or exploiting the Assets, but excluding information available to the public; Contract: Corporations Act means the Corporations Act 2001 (Cth); page 2
Disclosure Letter means the letter from the Seller to the Buyers provided immediately prior to the date of Execution containing disclosure of information against the Warranties; Earn-Out Accounts means the unaudited profit and loss statement of the Business in respect of both the financial years ending 30 June 2018 and 30 June 2019, to be prepared in accordance with clause 4
and Schedule 5, including a certificate stating the Earn Out Amount (if any); Earn Out Amount means the amount of the Purchase Price that is payable after Execution in respect of the financial years ending 30 June 2018 and 30 June 2019 in accordance with clause 4; Earn Out Limit means USD3.3 million; Electronic Addresses means the telephone numbers, facsimile numbers, home pages, domain names, social media presence and email addresses held by the Seller, or necessary, beneficial or incidental
in operating the Business, including without limitation, those set out in Schedule 1; Employees means the employees of the Seller in the Business; Employee Remuneration means: Encumbrance means: page 3
Environmental Law means all applicable foreign, federal, state, regional and local administrative, regulatory and judicial Laws, rules, statutes, codes, ordinances, regulations, binding interpretations,
binding policies, licenses, permits, approvals, plans, authorizations, directives, rulings, injunctions, decrees, orders, judgments, common law and any similar items in effect on the date of Execution relating to hazardous
wastes, hazardous or dangerous substances, chemicals, toxic substances, pollution, contamination of soil or ground water, water quality, waste, polychlorinated biphenyls, petroleum (its derivatives, by-products, or
constituents), the protection of human health, safety, or the environment (including ambient air, surface water, ground water, land surface or subsurface strata, land use, development, planning, noise, noise,
conservation of natural or cultural resources, exploration for or development of natural resources, or otherwise to protect the environment or persons or property), and any Contracts or undertakings between the Seller
and any Government Authority supervising an environmental law; Excluded Contracts means: Excluded Records means: Execution means execution of this Agreement; Execution Date Amount means the amount of USD2 million; FY 18/19 Accounts means the financial statements for the Business for the financial years ending 30 June 2018 and 30 June 2019 prepared in USD in full compliance with US generally accepted
accounting principles; FY 18/19 Actual Net Income means the total combined Net Income of the Business for the financial years ending 30 June 2018 and 30 June 2019 as set out in the FY 18/19 Accounts; FY 18/19 Financial Forecast Net Income means USD4,247,000; page 4
Goodwill means the goodwill of the Business, the exclusive right of the Buyers to represent the Buyers as carrying on the Business as the Seller's successor, and includes the Business Records and the
Electronic Addresses; Government Authority means any federal, state, territory, county, municipality, district, local or other jurisdiction of any nature, or any political subdivision thereof, federal, state, local, municipal, foreign or
other government, or governmental or quasi-governmental administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity of any nature (including any governmental division,
department, agency, commission, instrumentality, official, organization, body or other entity and any court, arbitrator or other tribunal) having jurisdiction or a function in relation to the Business, Assets or
Employees; Guarantors means each of David John Holman, Alan Irvine Scott and Bottrell; Independent Accountant means a chartered accountant or firm of chartered accountants appointed under clause 4; Insolvency means being an externally-administered body corporate, or being insolvent under administration; Intellectual Property means all industrial and intellectual property and proprietary rights worldwide, whether registered or unregistered, which are used in, or which are likely to be used in as contemplated
in the Seller's financial projections, which are necessary, beneficial or incidental to the Business, or which are in connection with the design, development, manufacture, use, marketing, import, export, distribution,
licensing, and sale of (and offers to sell) all Seller Products, including without limitation the Intellectual Property identified in Schedule 6, and: page 5
Law includes any federal, state, regional, foreign or local law, statute, ordinances, rule, regulation, judgment or decree; Material Adverse Change means any material adverse change in the Business, the profitability or prospects of the Business, the financial position or condition of the Assets, the liability of the Business, or
any fact, matter, event, action, omission, circumstance or proceeding from a circumstance or change in circumstance which may result in a material adverse change of a kind referred to above; Net Income means: less: page 6
and otherwise in accordance with the pro forma template set out in Schedule 5; Outgoings means all outgoings of a periodical or recurring nature in respect of the Business, Assets, Premises or Employees, including rates, Taxes, rent, Approval fees and payments under maintenance
contracts; Permitted Encumbrance means those Encumbrances set out in the Disclosure Letter; Plant and Equipment means the vehicles, plant, equipment, fixtures, fittings, furniture, furnishings and computer software used in the Business or necessary, beneficial or incidental to the operation of the
Business (including spare parts), including without limitation those set out in Schedule 1; Plant and Equipment Leases means the leasing agreements, hire purchase agreements, conditional sale agreements and sale by instalment agreements in respect of Plant and Equipment, including
without limitation those set out in Schedule 1; PPS Security Interest means a security interest that is subject to the PPSA; PPSA means the Personal Property Securities Act 2009 (Cth); Premises means: Premises Lease means each lease for the Premises between the Seller and the registered proprietor of each of the Premises; Principals means Mr David Holman and Mr Alan Scott; page 7
Purchase Price means the purchase price described in and payable in accordance with clause 4; Quarterly Earn Out Accounts means an unaudited profit and loss statement of the Business for the Relevant Quarter, to be prepared in accordance with the requirements set out in clause 4 and
Schedule 5, together with relevant working papers to support the information contained in these accounts. Receivables means the book and trade debts and other amounts due to the Seller in respect of the Business; S & W Assets means the Intellectual Property, the Goodwill and the Contracts; Seller Products means all products sold by the Seller in the Business, including without limitation those set out in Schedule 1; SGI Assets means all of the Assets other than the Intellectual Property, Goodwill and Contracts; Stock means all parent seed, advertising material, trading stock, work-in-progress, components, raw materials, stationery, consumables and packaging for use in the Business and on hand at Execution,
but which are not damaged or obsolete, including without limitation those set out in Schedule 1; Tax means any tax, duty, fee or penalty imposed on the Seller by any Government Authority, including income tax, gross receipts, licence, employment, severance, occupation, premium, windfall profits,
intangible, environmental, capital stock, profits, franchise, withholding, social security, disability, real estate, personal property, fringe benefits tax, capital gains tax, goods and services tax, stamp duty, payroll tax, bank
debit tax, sales, use, transfer, value added, registration, alternative or add-on minimum, customs and excise, council rates, land tax, emergency services levy, and water and sewerage rates, and/or any other tax or
similar governmental charge or any kind including any interest, penalties or additions to tax, whether disputed or not, and any obligation to indemnity, assume or succeed to the liability of any other person in respect of
any of the above tax, fee, duty or penalty but excludes any Tax which arises out of or in connection with this Agreement; VWAP means, for any trading day, the volume weighted average trading price of a share of S & W Seed common stock on the NASDAQ Stock Market for such trading day; Warranty Claim means any Claim arising out of or in connection with this Agreement or the transactions contemplated under it, including in relation to breach of one or more Warranties and any Claim in
relation to an indemnity under this Agreement; and Warranties mean the warranties in this Agreement, including without limitation those set out in Schedule 2, and
Warranty means any one of them. In this Agreement, unless the context otherwise requires: page 8
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3.1 Upon Execution: and with all rights which are now, or which at any time before Execution may become, attached to them. 3.2 For the avoidance of doubt and to the maximum extent permitted by law, the Buyers do not assume, and they are not responsible for, any liabilities or obligations of the Seller, and none of the liabilities or
obligations of the Seller in respect of the Business or otherwise transfers to the Buyers upon Execution, and the Seller indemnifies each of the Buyers against any such liabilities except that the Buyers assume: page 10
3.3 For the avoidance of doubt and to the maximum extent permitted by law, the Seller does not assume, and is not responsible for any, liabilities or obligations in relation to the Business or the Assets sold to the
Buyers under this Agreement in the period, or relating to the period, following Execution and the Buyers indemnify the Seller against any such liabilities arising from a Claim by the Buyers or third parties . 4.1 Subject to clauses 17.6, 18.4, and 20: where x $2,200,000, up to the Earn Out Limit. 4.3 The Buyers must provide to the Directors copies of all working papers relating to the preparation of and calculation for the draft Earn-Out Accounts for the purpose of reviewing the draft Earn-Out Accounts. page 11
4.4 Within 10 days after receiving the draft Earn-Out Accounts (Objection Period), the Directors may give the Buyers notice on behalf of the Seller stating that the Seller disputes
that the draft Earn-Out Accounts have been properly prepared in accordance with the requirements of this Agreement, setting out all details of each matter in dispute as are reasonably necessary for the Buyers to
determine the basis for the dispute, including all working papers and calculations, and the reasons why each matter is in dispute (each a Disputed Matter). 4.5 If the Directors on behalf of the Seller: 4.8 The Independent Accountant must be agreed by the Directors and the Buyers. If the Directors and the Buyers cannot agree on the Independent Accountant within three days of the date the Response is provided
to the Directors, then within six days of the date the Response is provided to the Directors, either the Directors or the Buyers may request that a suitability qualified accountant experienced with US GAAP and not
affiliated in any way with the Buyers or the Seller or the Directors fill the role as the Independent Accountant and if agreed by the Directors and the Buyers, that accountant shall be appointed as the Independent
Accountant., and failing agreement, S & W Seed must request its auditor to suggest three qualified accountants experienced with US GAAP, from which the Directors and Buyers must agree to select one and
failing agreement, one shall be selected by lot. 4.9 Following the Independent Accountant's appointment, the Disputed Matters must be referred to the Independent Accountant by written submission, which must include: page 12
4.10 The parties must promptly supply the Independent Accountant with any information, assistance and cooperation requested in writing by the Independent Accountant in connection with its determination and each
party may make written submissions to the Independent Accountant. All correspondence between the Independent Accountant and a party must be copied to the other parties. 4.11 The Independent Accountant must act as an expert, and not as an arbitrator, in determining the Disputed Matters. 4.12 In the absence of manifest error: 4.14 As soon as is practicable, but no later than 20 Business Days following the end of each calendar quarter, other than for the quarter ending 30 June of each year in which case, then no later than 60 Business Days
(Relevant Quarter) for the period commencing on the date of Execution and ending 30 June 2019, the Buyers must procure that the Seller is provided with Quarterly Earn-Out Accounts to enable the Directors
to keep track of the financial performance of the Business. 4.15 The Buyers may pay, or procure payment of, the Earn Out Amount to the Seller: with the issue price of any such stock being equivalent to the 10 day VWAP on the day immediately before payment of the Earn Out Amount as determined by the Buyers, provided that in no case will S & W
Seed issue to the Seller more than 1,681,918 shares of common stock of S & W Seed (representing 9.99% of the total number of shares outstanding on the date of Execution) in total pursuant to clause 4.1(b)(2)
and this clause 4.15. 4.16 Notwithstanding anywhere else in this clause, the Buyers are only obliged to pay a total Earn Out Amount up to the Earn Out Limit, and any excess calculated under this clause over the Earn Out Limit is
disregarded. page 13
4.17 In the event that the Buyers sell, transfer or otherwise dispose of all or substantially all of the Assets or the Business sold to the Buyers under this Agreement prior to 30 June 2019, then the Buyers will act
reasonably to consult with the Seller to negotiate and agree on the amount (if any) payable on the Earn Out Amount, having regard to the value of the Assets then sold and the progress that has been made in
achieving the FY 18/19 Financial Forecast Net Income at the time that the Assets are sold.
5.1 The Seller acknowledges and warrants that it is the sole legal and equitable owner of the Business Name and that it is currently
incorporated using the Business Name as its corporate name.
5.2 With effect on and from Execution, the Seller assigns absolutely to S & W Seed, Encumbrance free: 5.3 The Seller must do all things and take all steps necessary to give effect to clause 5.2 including:
6. Assignment of Intellectual Property page 14
6.3 Each of the Seller and each Principal unconditionally consents in favour of S & W Seed, S & W Seed's assignees, licensees, successors in title and all persons authorised by S & W Seed, to the
performance by S & W Seed, S & W Seed's assignees, licensees, successors in title and all persons authorised by S & W Seed, or any act or omission which would otherwise amount to an infringement
of any moral rights of it in any of the Intellectual Property.
6.4 Except as specifically set out in the Disclosure Letter, nothing in this Agreement, and none of the transactions contemplated under this Agreement, causes the Buyers or either of them or any of their associates, or
the Seller, to:
7. Principals
7.1 Upon Execution, the Seller, and the Principals must ensure the delivery of, and the Principals must deliver:
7.2 Each of the Seller and each Principal warrant that on Execution, the Principals cease to be employees of the Seller.
7.4 David Alan Holman indemnifies the Buyers against any Claims made by him against the Buyer in breach of clause 7.3.
7.5 Alan Irvine Scott indemnifies the Buyers against any Claims made by him against the Buyer in breach of clause 7.3.
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8. Deliverables upon Execution
8.1 Upon Execution, the Buyers must:
8.2 Upon Execution, the Seller must deliver to S & W Seed:
8.3 Upon Execution, the Seller must deliver to SGI including by leaving at the Premises (where applicable and appropriate):
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8.4 Notwithstanding anything set out above, if directed by the Buyers, the Seller must do everything necessary to transfer upon Execution such Intellectual Property as is identified by the Buyers to an entity nominated
by the Buyers.
8.5 In this clause, unless otherwise provided, an executed document is a document executed by the Seller and each other party to that document, except the Buyers.
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8.6 The obligations of the Seller and the Buyer under this clause are interdependent and must be carried out contemporaneously. No delivery or payment will be deemed to have been made until all deliveries and
payments under this clause have been made and all actions under this clause upon Execution will be deemed to take place simultaneously.
9.
Post-Execution
9.2 S & W Seed undertakes to remove the restrictive legends placed on the common stock in S & W Seed promptly following the earlier of:
9.3 For a period, of up to 90 Business Days (as the Buyers require), commencing on the day of Execution, the Seller and the Principals must, without additional remuneration (except under the arrangements between
the Buyers and the Principals):
9.4 After Execution, the Seller and the Principals must make available to the Buyers all information which is necessary or beneficial for completion of any Tax return for the Business in respect of a period before
Execution and must give the Buyers reasonable assistance in connection with any audit, enquiry or investigation in respect of the Business in respect of a period before Execution.
9.5 The Buyers must:
with respect to the transfer of ownership of any motor vehicle under this Agreement. 9.6 The Seller must use all reasonable efforts to assist the Buyers in fulfilling their obligations under clause 9.5 including providing the Buyers with all information and documents as are reasonably required by the
Buyers.
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9.7 The Buyers and each Principal must following Execution use all reasonable efforts to procure the release of the personal guarantee given by each Principal in respect of the Plant and Equipment Lease as soon as
practicable after Execution.
9.8 Until each Principal is released from such guarantee, the Buyers indemnify each Principal from and against any Claim or liability arising out of such guarantee that may be suffered, paid or incurred by either
Principal, but only to the extent that such Claim or liability relates to the failure of the Buyers to do anything that they are required to do in relation to the subject matter of the guarantee after Execution.
9.9 The Buyers must procure that all Business Records are preserved for the period beginning on the date of Execution until:
9.10 The Seller must ensure that all Excluded Records and Excluded Contracts are preserved for the period beginning on the date of Execution:
9.11 After Execution, the Buyers must provide the Seller and its representatives with reasonable access to the Business Records and to take copies of any Business Records (at the accessing party's cost) for the
limited purposes of:
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10.2 In respect of the hire purchase arrangements between the Seller and Macquarie Leasing Pty Limited (Provider) for the Mitsubishi Triton utility vehicle (Vehicle), the
Buyer acknowledges and agrees on Execution, to accept transfer of the Vehicle from the Seller encumbered as a result of the hire purchase arrangements, and accept a transfer of the hire purchase arrangements
along with all of the other Contracts under clause 10.1.
10.6 The Seller must not breach any Contract before Execution.
10.8 In respect of Contracts that are not novated on and from Execution, then on and from Execution, the Buyers are responsible for, and must use reasonable efforts to perform, the
Seller's obligations under any Contract and obligations arising from quotations given, tenders made or orders given or taken by the Seller in the ordinary course of the Business before Execution, excluding unusual
or onerous quotations, tenders and orders. The Seller must provide the Buyers with reasonable assistance as is requested from time to time to allow the Buyers to perform such obligations. The Buyers indemnify the
Seller from and against all Claims, losses, costs or expenses suffered, paid or incurred by the Seller from or in relation to any breach, non-performance or non-observance of any obligation which is due to be performed
after Execution under a Contract that is not novated on and from Execution.
10.9 If, despite all reasonable endeavours, the Seller and the Buyers are unable (including because any third party consent required cannot be obtained) to transfer a Contract under clause 10.1 within six months from
Execution, either of the Buyers may, by written notice to the Seller, require the Seller to terminate the Contract with, in so far as reasonably practicable, no additional liability to either the Seller or the Buyers. For the
avoidance of doubt, there will be no adjustment to the Purchase Price as a result of any such termination.
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11. Transfer of manufacturers' warranties
11.1 On and from Execution, the Seller transfers to the Buyers the benefit of all warranties and guarantees by any third party for any Asset.
11.2 To the extent that the Seller cannot transfer the benefit in those warranties and guarantees, on and from Execution, the Seller holds the Seller's interest in those warranties and guarantees on trust for the
Buyers.
12. Receivables
12.2 Upon Execution, the Seller must not pursue the Receivables.
12.3 From Execution, the Seller must give reasonable assistance (including during any form of debt recovery or enforcement proceedings) to the Buyers in collecting the Receivables provided that any debt recovery or
enforcement proceedings by the Buyers shall be at the Buyers' cost;
12.4 The Seller must pay any amounts received by the Seller following Execution to the Buyers within 5 Business Days after receipt if the Seller receives any Receivables.
13. Creditors
The Seller must pay all of the Seller's debts to creditors of the Business incurred prior to Execution as and when they become due and payable. 14. Products sold before
Execution
14.1 The Buyers may repair or replace any goods provided by the Seller in the Business and still under warranty after Execution, at the Seller's cost.
14.2 The Seller must pay the Buyers for such repair or replacement within 5 Business Days of receipt of the Buyers' written notice.
15. No competition
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15.3 Each of the Seller, each Director and Bottrell must not, directly or indirectly in any capacity (including but not limited to principal, employee, consultant, agent, director, officer, partner, or participant in a join
venture, corporation, trust or other entity):
15.4 Clause 15.1 is read as if each possible combination of:
is a separate clause. 15.5 Clause 15.2 is read as if each possible combination of:
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is a separate clause. 15.6 All combinations apply cumulatively. Each combination must be read down to the extent necessary to be valid. If any combination cannot be read down to that extent, it must be severed.
15.7 In this clause:
15.8 Each of the Seller, each Director and Bottrell acknowledges that:
15.9 Nothing in this clause is intended to:
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16. Warranties
16.1 No warranty in this Agreement is limited by any other warranty.
16.2 Each warranty in this Agreement is also a representation.
16.3 Each party enters into this Agreement in reliance on the warranties in this Agreement.
16.4 The warranties in this Agreement remain in full force and binding, including after Execution.
16.5 Each of the Buyers represents and warrants to the Seller that, as at the date of Execution:
16.6 The Seller represents and warrants to the Buyers that each of the Warranties is complete, true and accurate and each such Warranty is given as at the date of
Execution.
17. Limitations on Warranty Claims
17.1 The Warranties are given subject to and qualified by the Disclosure Letter, and the Buyers may not make any Warranty Claim if, and only
to the extent that, a disclosure is made in the Disclosure Letter and that disclosure qualifies a Warranty in accordance with the Disclosure Letter.
17.2 Each of the following applies in respect of any Warranty Claim: page 25
provided that where: and for the avoidance of doubt, if the Earn Out Amount is nil, then the Seller is only required to pay to the Buyers the amounts in clause 17.2(a)(1) and clause 17.2(a)(3); and For the avoidance of doubt, each Warranty Claim can be of any amount provided that each Warranty Claim is at least the minimum threshold in clause 17(1) and the sum of all of the Warranty Claims is at least the
minimum threshold in clause 17(2), and once both minimum thresholds have been reached, then the full amount of all Warranty Claims can be recovered, and further Warranty Claim Notices can be provided
subsequently without meeting the minimum threshold in clause 17(2); and page 26
17.3 If the Buyers, or any related body corporate of a Buyer, receives any payment from or on behalf of the Seller for a Warranty Claim (Seller Payment) and either Buyer or any related body corporate of a
Buyer subsequently recovers any amount from any third party (including under a third party Claim) for that Warranty Claim (Recovered Amount), the Buyers must promptly:
17.4 The Buyers acknowledge and agree that, except as expressly stated in this Agreement (including in the Warranties):
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any representation, warranty, promise or undertaking by the Seller or any of its representatives in respect of the future financial performance or prospects of the Business or otherwise (including in connection with
any financial analysis or modelling conducted by the Seller or any of its representatives). 17.5 Despite any other provision of this Agreement:
17.7 The Buyers may not recover from the Seller, any Guarantor or Bennett more than once for a Warranty Claim.
17.8 Each qualification and limitation in this clause 17 is to be construed independently of the others and is not limited by any other qualification or limitation.
18.1 If the Buyers have sufficient specificity of the facts, matters, background and circumstances that are likely
to lead to the Buyers giving a notice under clause 18.2, then the Buyers (acting reasonably) will endeavour to communicate those facts, matters, background and circumstances to the Seller, provided that the failure by
the Buyers to do so shall in no way compromise or prevent the Buyers giving a notice under clause 18.2.
18.2 If either of the Buyers has a Warranty Claim, then 18.3 If:
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then, subject to clause 18.4 the Seller must pay to the Buyers the amount determined as representative of the monetary value of the Warranty Claim as set out in the Warranty Claim Notice within 10 Business
Days. 19.1 The Seller indemnifies the Buyers against all losses, costs, liability and expenses incurred by the
Buyers:
19.2 If any Claim is brought by a third party against the Seller and/or either Buyer regarding the ownership of, or any infringement of, or otherwise in connection with, any Assets:
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20. Guarantee, indemnity and undertaking
and as Directors and/or as a shareholder of the Seller, receive and acknowledge that they receive, benefit from the Seller entering into this Agreement. 20.3 Bottrell acknowledges, agrees and undertakes that:
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20.5 The guarantee and the indemnity in clauses 20.1 and 20.2 are continuing securities for the whole of the Seller's obligations (present and future) under this Agreement to the Buyers. They continue until the:
20.6 The maximum aggregate amount that the Buyers may recover from David John Holman under clause 20 is one third of the sum of:
provided that where the amount that the Buyers may recover from David John Holman under this clause 20 exceeds the sum of the amounts in clause 20.6(a) and clause 20.6(c) (Holman Excess)
then: page 31
provided that where the amount that the Buyers may recover from Alan Irvine Scott under this clause 20 exceeds the sum of the amounts in clause 20.7(a) and clause 20.7(c) (Scott Excess) then:
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provided that where the amount that the Buyers may recover from Bottrell under this clause 20 exceeds the sum of the amounts in clause 20.8(a) and clause 20.8(c) (Bottrell Excess)
then: 20.10 A liability or obligation under this clause is not discharged, released or reduced by:
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20.11 Clause 20.6 applies even if:
20.12 For the avoidance of doubt, where liability for a Warranty Claim is limited under clause 17, the amount of liability for a guarantee or indemnity under this clause 20 in respect of that
Warranty Claim will only be up to the amount of that Warranty Claim as limited under clause 17.
21. Consent
21.1 Unless otherwise provided, a party may give or withhold consent:
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21.2 A party's consent is valid only if it is in writing and signed by that party or its authorised representative.
22. Confidentiality
22.1 A party may only use confidential information:
22.2 A party may only disclose confidential information:
22.3 In this clause, confidential information is:
22.4 The Seller, Bottrell and the Directors must not announce this Agreement, without the Buyers' written consent. If the Buyers consent, the announcement must be as the Buyers direct.
22.5 Notwithstanding this clause 22, each of the Seller, Bottrell and the Directors:
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23. GST
23.1 All payments under this Agreement are exclusive of GST, unless expressed to be inclusive of GST.
23.2 The Seller and the Buyers agree and acknowledge that the supply of the:
23.3 The Seller and the Buyers further agree and acknowledge that the consideration for the SGI Assets is provided for in the Execution Amount and no part of the Earn Out Amount is consideration for the SGI
Assets.
23.4 In relation to the supply of the S&W Assets to S&W Seed, the parties agree that:
23.5 Within 30 days of Execution, SGI must on behalf of the Buyers give the SGI Apportionment to the Seller.
23.8 A party making a supply under this Agreement must issue an adjustment notice immediately it becomes aware of an adjustment event in respect of a taxable supply. Within 14 days after the supplier issues
an adjustment note:
23.9 If the Australian Taxation Office (ATO) issues an amended notice of assessment requiring the Seller to pay GST on a supply of any of the Assets under this Agreement,
then: page 36
23.10 In this clause:
page 37
24. Miscellaneous
24.1 Each party must do everything necessary to carry out this Agreement, including:
24.2 No party may do anything that will prevent this Agreement from being carried out.
24.3 A party may only assign its rights or obligations under this Agreement with the written consent of the other parties.
24.4 This Agreement may only be amended in writing signed by the parties.
24.5 A party may only waive a breach of this Agreement in writing signed by that party or its authorised representative. A waiver is limited to the instance referred to in the writing (or if no instance is referred to in t
writing, to past breaches).
24.6 The rights and obligations of the parties continue after Execution.
24.7 This Agreement records the entire agreement between the parties about the Business, the Premises and the Assets. The parties exclude all terms implied by Law, where possible.
24.8 Any investigation, whether before or after the date of Execution, by or for the Buyers, does not affect:
24.9 This Agreement may be executed in any number of counterparts. A counterpart may be a facsimile, digital or electronic scan or portable document format. Together all counterparts make up one document. If this
Agreement is executed in counterparts, it takes effect when each party has received the counterpart executed by the other party, or would be deemed to have received it if a notice.
page 38
24.11 Notice is deemed to be received by a person:
However, if the notice is deemed to be received on a day which is not a Business Day or after 5:00 pm, it is deemed to be received at 9:00 am on the next Business Day. 24.13 This Agreement is governed by the Law of South Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of South Australia and the division of the Federal Court of
Australia in that jurisdiction, and the courts of appeal from them. No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
24.14 Each party must pay its own costs of preparing this Agreement and any document required by this Agreement. The Buyers must pay (within the time permitted by statute) stamp duty (if required) and other
government charges (including any fines, interest or penalties) in respect of this Agreement and any document required by this Agreement. The Seller must pay the costs of obtaining the consent and waivers of third
parties.
page 39
Execution Executed 27 May, 2016 Executed Seed Genetics International Pty Ltd /s/ D. Jury /s/ Andrew Ross Carthew Director Company Secretary Dennis Jury Andrew Ross Carthew Name (please print) Name (please print) Executed S & W Seed Company /s/ Matthew K. Szot /s/ D. Jury Officer Officer Matthew K. Szot Dennis Jury Name (please print) Name (please print) Executed SV Genetics Pty Ltd /s/ D.J. Holman /s/ Alan Scott Director Director David Holman Alan Scott Name (please print) Name (please print) Signed David John Holman in the presence of: /s/ Pamela Holman /s/ D.J. Holman Witness David John Holman Pamela Holman Name (please print) page 40
Signed Alan Irvine Scott in the presence of: /s/ Mary Ann Scott /s/ Alan I. Scott Witness Alan Irvine Scott Mary Ann Scott Name (please print) Signed Trevor Bailie in the presence of: /s/ Lynly A. Hatton /s/ Trevor Bailie Witness Trevor Bailie Lynly A. Hatton Name (please print) Executed Bottrell Precision Ventures LLC /s/ James R. Bennett James R. Bennett, member James R. Bennett Signed James R. Bennett in the presence of: /s/ Heidi Crane /s/ James R. Bennett Witness James R. Bennett Heidi Crane Name (please print) page 41
This schedule has been omitted pursuant to Item 601(b)(2) of Regulation S-K since, in the Company's opinion, the omitted information does not contain information that is
material to an investment decision, and such information is not otherwise disclosed in the Acquisition Agreement. Omitted from Schedule 1 - Details are six numbered sections of
bulleted lists or tables as follows: 1. Contracts 2. Electronic Addresses 3. Plant and Equipment 4. Plant and Equipment Leases 5. Sellers Products 6. Stock (as at week commencing 2 May 2016) The Company hereby undertakes to furnish supplementally a copy of the omitted schedule to the Securities and Exchange Commission upon request.
In this Schedule 2: (a) a reference to except as disclosed in the Disclosure Letter (or words to that effect) is a reference to something that is disclosed in the signed Disclosure Letter (including by way of disclosure by
referring to the specific terms of another document in the Disclosure Letter); and (b) a reference to as far as the Seller is aware (or words to that effect), in relation to a matter, is to the knowledge and belief that each of the Seller and each Director has after making, or would have if
it had made, due and careful enquiries in relation to that matter, or that a diligent seller in the Seller's position ought to have, or that a diligent director in the Directors' position ought to have. 1. Warranties about Assets
1.1 The Seller warrants that immediately before Execution:
1.2 The Seller warrants that as at the date of Execution:
2. Warranties about information
The Seller warrants that as at the date of Execution: except as disclosed in the disclosure letter or except the circumstances affecting the whole industry in which the Business operates wherever the Business operates (and only to the extent that the Business is not
materially or disproportionately adversely affected as compared to other participants in the industry); and
3. Warranties about Plant and Equipment
The Seller warrants that as at the date of Execution: 4. Warranties about Stock
The Seller warrants that as at the date of Execution:
5. Warranties about Contracts
5.1 The Seller warrants that as at the date of Execution:
6. Warranties about Business Name
The Seller warrants that as at the date of Execution: 7. Warranties about Intellectual Property
The Seller warrants that as at the date of Execution:
8. Warranties about third party intellectual property
The Seller warrants that as at the date of Execution:
9. Warranties about Premises
The Seller warrants that as at the date of Execution:
10. Warranties about Plant and Equipment Leases
The Seller warrants that as at the date of Execution: 11. Warranties about Principals
11.1 The Seller warrants that as at the date of Execution:
and the Seller does not know of any circumstance which may result in any such Claim or legal proceedings;
12. Warranties about Business Records
The Seller warrants that as at the date of Execution:
13. Warranties about Approvals
The Seller warrants that as at the date of Execution:
14. Warranties about environment
The Seller warrants that as at the date of Execution, and in each case, as far as the Seller is aware: 15. Warranties about legal proceedings
The Seller warrants that as at the date of Execution: 16. Warranties about Receivables
The Seller warrants that as at the date of Execution:
17. Warranties about Compliance with Laws
The Seller warrants that as at the date of Execution: 18. Warranties about insurance
The Seller warrants that as at the date of Execution:
19. Warranties about Tax
The Seller warrants that as at the date of Execution, the Seller is registered for GST. 20. Warranties about subscription
The Seller warrants that as at Execution:
Schedule 3 - Form of Service Agreement David John Holman This Agreement was made on the __________ day of ________________ 2016, between: Seed Genetics International Pty Ltd ACN 061 114 814 hereinafter referred to as "SGI", and: SeedVision Pty Ltd (ACN 101 782 414) hereinafter referred to as the "Contractor", and David John Holman of 12 Hakea Court, Narangba QLD 4504 hereinafter referred to as the "Covenantor". Whereas: SGI wishes to engage the Contractor to provide the Services to SGI. The Contractor has agreed to provide the Services to SGI. The parties have agreed to be bound by the terms and conditions of this Agreement. 1. Definitions 1.1 "Affiliate" means a related body corporate of SGI (within the meaning of section 50 of the Corporations Act 2001 (Cth)). 1.2 "AAA" means the asset acquisition agreement between SGI, the Contractor and others dated on or around the date of this Agreement in respect of the sale of business
assets used in the operation of the hybrid sorghum and sunflower breeding, production, marketing and distribution business known as `SV Genetics'. 1.3 "Business" means the business of conducting plant research, breeding, production and marketing services in connection with seed products and other related services
carried on by SGI. 1.4 "Business Day" is a day other than a Saturday, Sunday or public holiday in the State of South Australia, Australia. 1.5 "Business Competing with the Business" means a business that at the relevant time is either:
1.6 "Commencement Date" means the date of Execution (as defined in the AAA). 1.7 "Confidential Information" includes all information obtained by the Contractor in the course of the engagement under this agreement that is of a confidential nature
regarding the previous, current or future business interests, methodology or affairs of SGI or of any person or entity with which SGI may deal or be concerned including, but not limited to: but excluding: 1.8 "Contractor Arrangements" means those arrangements as set out in Annexure A to this Agreement. 1.9 "Customer" means a customer of SGI with whom the Contractor had personal contact during the 12 months immediately before the termination of this
Agreement. 1.10 "End Date" means 30 June 2020. 1.11 "Government Agency" means a government or governmental, semi-governmental or judicial entity or similar authority, and includes a self regulatory organisation
established under statute or stock exchange. 1.12 "GST" means goods and services taxes and other similar taxes 1.13 "Insolvency Event" means any of the following:
1.14 "Intellectual Property Rights" means all intellectual property rights including without limitation: 1.15 "Moral Rights" means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship
falsely attributed, more particularly as conferred by the Copyright Act 1968 (Cth) and rights of a similar nature of anywhere in the world. 1.16 "Service Fee" means the fee as set out in the Contractor Arrangements set out in Annexure A to this Agreement. 1.17 "Services" means the services as set out in the Contractor Arrangements set out in Annexure A to this Agreement. 1.18 "Tax" means any tax, goods and services tax or value added tax, levy, charge, impost, duty, fee, assessment, contribution, deduction and compulsory loan or
withholding which is assessed, levied, imposed or collected by any Government Agency and/or Taxation Authority and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of
any of the above. 1.19 "Taxation Authority" means in respect of a Tax, the person who administers the imposition and collection of that Tax. 1.20 "Term" means the term of this agreement as set out in clause 5 of this agreement. In this Agreement, unless the context otherwise requires: 2.1 singular includes plural and plural includes singular;
2.2 headings do not affect interpretation; 2.3 words importing any gender include all other genders; and 2.4 reference to legislation includes any amendment to it or legislation substituted for it, including any regulations or instruments in force. 3. Services 3.1 The Contractor will provide the Services to the standards, at the times, location and in the frequency, quantity and manner as specified in the Contractor Arrangements.
3.2 Without limiting the Contractor's responsibilities pursuant to clause 3.1, the Contractor:
3.2.1. will comply with the requirements set out in the Contractor Arrangements; 3.2.2. will perform its obligations under this Agreement and throughout the Term in a competent and professional manner and in accordance with this Agreement; 3.2.3. has the necessary skills, experience, qualifications, resources, technology and know-how to supply the Services; 3.2.4. holds and will maintain all requisite licences, permits, permissions, consents and/or authorities necessary for the provision of the Services; 3.2.5. will ensure the Services will be performed in full compliance with all applicable laws, rules, regulations and customs. 3.3 If requested by SGI, the Contractor will supply evidence of compliance with these obligations under clause 3.2, to SGI's reasonable satisfaction.
3.4 The Contractor acknowledges that SGI is entering into this Agreement relying on the promises set out in clause 3.2.
3.5 The Contractor will:
3.5.1. comply with any reasonable direction of SGI relevant to the performance of the Services; 3.5.2. use all reasonable endeavours to ensure that the Services are completed by the End Date and in accordance with any timetable specified in the Contractor Arrangements and take
reasonable steps to minimize any delay; 3.5.3. notify SGI of any delay as soon as reasonably practicable after the Contractor first has cause to believe the Services or any part of them may be delayed; and 3.5.4. not bring SGI into disrepute. 3.6 The Contractor will comply with all policies of SGI as varied and notified to the Contractor from time to time. The Contractor agrees and acknowledges that such policies
and procedures form a part of the Contractor's obligations to SGI but do not impose legally binding obligations on SGI nor do such policies and procedures form a part of this Agreement. The Contractor acknowledges
that SGI's policies and procedures do not create enforceable rights in favour of the Contractor.
4. Contractor's staff and sub-contractors 4.1 Subject to clause 4.4, the Contractor must employ only the Covenantor or any other staff approved in writing by SGI to perform the Services.
4.2 The Contractor alone employs that staff.
4.3 Without limiting the previous clause, the Contractor must:
4.3.1 pay all employee entitlements for that staff including salary, holiday pay, sick pay, long service leave and superannuation;
4.3.2 deduct and remit from those employee entitlements any tax or levy required by law;
4.3.3 pay any payroll tax for that staff;
4.3.4 ensure that that staff is suitable and sufficiently skilled to satisfactorily perform the Services;
4.3.5 if SGI so requires, cease to permit a particular employee of the Consultant to perform the Services; and
4.3.6 ensure that that staff complies with all reasonable requirements of SGI relevant to the performance of the Services.
4.3.7 indemnify SGI against all claims and all costs, liability and expenses incurred by SGI in respect of a claim by that staff that SGI employs any of that staff. 4.4 The Contractor may sub-contract the performance of the Services to any person approved in writing by SGI.
4.7 The Contractor is responsible to SGI for the acts and omissions of any sub-contractor and any employee of a sub-contractor. Notwithstanding that the Contractor appoints a subcontractor, the Contractor re
responsible for the performance or non-performance of all of the obligations owed by the Contractor under this Agreement. 5. Term 5.1 From the Commencement Date the Contractor will provide the Services to SGI on the terms of this Agreement until the earlier of the End Date,
the completion of the Services to the satisfaction of SGI and the termination of this Agreement. 5.2 The parties agree that the 6. Service Fee 6.1 Subject to the Contractor performing the Services to SGI's satisfaction, SGI will pay the Contractor the Service Fee in consideration of the Contractor providing the
Services to SGI in accordance with this Agreement.
6.2 Unless otherwise approved in writing prior to the relevant expense being incurred, SGI will only be liable for the expenses incurred by the Contractor in the course of performing the Services as describe
Contractor Arrangement.
6.3 Subject to receipt of a valid tax invoice, any amount in respect of GST payable under clause 17 must be paid to the Supplier at the same time as the related Service Fee(s) is
payable. 7. Insurance 8.1 SGI is and remains the sole beneficial owner of the Confidential Information.
8.4 The Contractor and the Covenantor must take all reasonable steps to prevent the use or disclosure of Confidential Information by a third party.
8.5 The Contractor and the Covenantor agree to keep the contents of this Agreement confidential. 9.1 All Intellectual Property Rights in any document, work or other matter (including without limitation plant material, seed and other germplasm) created or contributed to
by the Contractor in the course of or in connection with this Agreement or in connection with the Contractor using SGI's information and/or resources belong to SGI. The Contractor must immediately disclose to SGI all
Intellectual Property Rights created or contributed to by the Contractor. By this Contract (if applicable), the Contractor assigns any such Intellectual Property Rights to SGI. The assignment takes effect as each part of
the Intellectual Property Rights come into existence, and in respect of any part of the Intellectual Property Rights that came into existence prior to the date of this Agreement, the assignment takes effect upon
execution. The Contractor must assist SGI or its nominee at SGI's cost to obtain any statutory or other protection for Intellectual Property Rights as determined by SGI. The Contractor must not oppose the grant of
any such statutory or other protection to SGI or its nominee nor assist anyone else to oppose the granting of that statutory or other protection to SGI or its nominee or to obtain any statutory or other protection for those
Intellectual Property Rights in competition with SGI or its nominee.
9.2 To the extent that the Contractor is the author of any works in the course of or in connection with this Agreement ("Works") and Moral Rights rest in the Contractor in relation to the Wo
Contractor irrevocably and unconditionally consents to SGI being attributed as the author of the Works. The Contractor will not make any claim in respect of any infringement or contravention of the Contractor's Moral
Rights (whether it be an act or omission) arising from or in connection with the use, treatment, alteration, attribution of or dealing with the works by SGI.
10. Restraint (b) carry on or be engaged in a Business Competing with the Business; (c) induce, solicit or attempt to induce or solicit any Customer to deal with the Contractor, the Covenantor or any other person or body; (d) accept work similar to that performed by SGI from any Customer; (e) induce, solicit or attempt to induce or solicit any person to leave the employment of SGI; 10.1.2 (a) during this Agreement; (b) within 3 years after the termination of this Agreement; (c) within 2 years after the termination of this Agreement; (d) within 12 months after the termination of this Agreement; (e) within 6 months after the termination of this Agreement; (f) within 3 months after the termination of this Agreement;
10.1.3 (a) in Australia; (b) in South Australia; (c) in Adelaide; (d) within 5 kilometres from the General Post Office, Adelaide. 10.2.1 the start of clause 10.1;
10.2.2 a conduct in clause 10.1.1;
10.2.3 a period in clause 10.1.2; and 10.2.4 an area in clause 10.1.3;
is a separate clause. All these combinations apply cumulatively and each combination is severable from each other combination. 10.3 Each combination (as set out in clause 10.2) must be read down to the extent necessary to be valid. 10.4 If any individual combination (as set out in clause 10.2) cannot be read down according to clause 10.3, it must be severed. The severance of a particular combination shall not prejudice or
in any way affect the validity or enforceability of any other combination. 10.5 Without limiting SGI's other remedies, SGI will be entitled to injunctive relief to restrain a breach by the Contractor or the Covenantor of the terms of this clause 10, in addition to any other
rights or remedies which SGI may have. 10.6 Clause 10 does not apply to any activity which is excluded from the scope of the restraint provisions in the AAA. 11. Termination 11.1 Either party may terminate this Contract by the giving of one (1) month's notice in writing to the other party. 11.2 If either party breaches a term of this Agreement, ("Defaulting Party") and the breach can be remedied, the other party ("Non- Defaulting Party")
may give the Defaulting Party not less than thirty (30) days' notice to remedy the breach. If the breach is not remedied within the period stipulated in the notice, the Non-Defaulting Party may give the Defaulting Party a
notice immediately terminating this Agreement. 11.3 Either party may terminate this Agreement by notice to the other party immediately upon any of the following events: 11.3.1 if the other party commits a serious breach of this Agreement which cannot be remedied; 11.3.2 a persistent and deliberate failure by the Contractor to comply with SGI's policies and procedures in a material respect; 11.3.3 conduct by the Contractor which is likely to cause a serious risk to health and safety;
11.3.4 the Contractor becoming of unsound mind or becoming liable to be dealt with under the law relating to mental health; 11.3.5 the Contractor failing to comply with any reasonable directions of SGI in a material respect; 11.3.6 conduct by the Contractor that brings in SGI's reasonable opinion, SGI into disrepute; 11..7 if an Insolvency Event occurs in relation to the other party; or 11.8 if the other party commits a serious criminal offence. 11.4.1 return to SGI all documents and records in the Contractor's control (whether printed, digital, electronic or computer materials); 11.4.2 delete any documents and/or records held electronically in any medium in the Contractor's control (which deletion may be supervised and/or confirmed by SGI in such a manner as SGI
deems fit); 11.4.3 return to SGI all property belonging to or leased by SGI in the Contractor's control, including any stationery, cheque books, books, documents, records, discs, access cards, keys, mobile
phones, computer hardware and software, credit cards, motor vehicles, computer log-in codes, stock, samples, safety and/or branded clothing belonging to SGI and any other property of SGI or which bears SGI's
business or trade name, trade marks or registered names or if which SGI owns or is entitled to copyright or which contains any of the Confidential Information; and 11.4.4 provide SGI with a statutory declaration regarding the Contractor's compliance with this clause. 11.5 If upon return of SGI's property pursuant to clause 11.4 SGI considers in its reasonable opinion that the Contractor has caused damage to such property, not being fair wear and tear, SGI
shall be entitled to deduct an amount in respect of such damage from any payments SGI is required to make to the Contractor upon termination. 11.6 If SGI terminates this Agreement pursuant to this clause 11, SGI will not be liable to the Contractor for any Claims by the Contractor relating to the termination of this Agreement by SGI,
including any additional payment for losses or expenses incurred by the Contractor. 12. Suspension If:
then SGI may at its discretion suspend the Contractor's provision of Services with or without suspending payment of the Service Fee in order to investigate the complaint or belief or until the
third party investigation with respect to the Contractor is complete. 13. Relationship 13.1 The Contractor is a contractor independent of the control of SGI. 13.2 The parties are not principal and agent, partners, trustee and beneficiary, or employer and employee. 13.3 Neither party may: 13.3.1 hold out their agents, contractors or employees as the agents, contractors or employees of the other party; 13.3.2 pledge the credit of the other party; or 13.3.3 contract on behalf of the other party 14. Warranties 14.1.1 it is not entitled to receive compulsory superannuation contributions from SGI for the purposes of the Superannuation Guarantee (Administration) Act 1992 as amended or replaced
from time to time; 14.1.2 it is not entitled to receive annual leave or any other type of leave pursuant to the Fair Work Act 2009 or any instruments made pursuant to that legislation; 14.1.3 it is not entitled to receive long service leave in accordance with the Industrial Relations Act 1999(QLD); 14.1.4 tax is not required to be withheld by SGI from the Services Fees on a PAYG (instalment) basis; 14.1.5 it has the insurance policies required by this Agreement and warrants that such insurance policies will be maintained throughout the term of this Agreement; (collectively, "Warranties"). 14.3 Without prejudicing SGI's rights in the event of a breach of the Warranties, SGI may recover from the Contractor any amount for which SGI is indemnified by the Contractor under clause
14.2 from any amounts that SGI owes the Contractor at SGI's discretion. 14.4.1 the value of the claims made against SGI by the Contractor or Covenantor in breach of the Warranties; and 14.4.2 any reasonable costs incurred by SGI in respect of such claims,
and in no case shall such liability extend to any liabilities, 14.5 The parties acknowledge and agree that they must act at all times in a manner consistent with the Warranties being true and correct and the relationship between
the parties (as described in clause 13), and that no party shall seek to deny the truth and accuracy of the Warranties or the nature of the relationship between the parties (as described in clause 13) in any forum.
15. Affiliates, employees and sub-contractors 15.1 At the request and cost of SGI, the Contractor must enter into a deed with an Affiliate containing obligations similar to those set out in
clause 9 (Intellectual Property) and clause 10 (Restraint) 15.2 The Contractor must ensure that its employees, agents and sub-contractors comply with clause 9 (Intellectual Property) and clause 10 (Restraint) as if they were the
Contractor. 15.3 At the request and cost of SGI, the Contractor must cause any of its employees, agents or sub-contractors nominated by SGI to enter into a deed, with SGI or an Affiliate or both, containing
obligations similar to those set out in clause 9 (Intellectual Property) and clause 10 (Restraint). 16. Limitations No exclusion or limitation 16.1 To the extent SGI acquires goods or services from the Contractor as a Consumer (within the meaning of section 3 of the Australian Consumer Law, which is set out in Schedule 2 to the
Competition and Consumer Act 2010 (Cth)), SGI may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by
agreement. 16.2 Nothing in this clause 16 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any
liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or modification of which would: 16.2.1 contravene that statute; or 16.2.2 cause any term of this Agreement to be void, (Non-excludable Obligation) Exclusion of implied obligations 16.3 Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom, or the general
law that impose any liability or obligation on the Contractor, the Covenantor or any of their Affiliates are expressly excluded under this Agreement. Limitation of liability 16.4 Except in relation to Non-excludable Obligations, the Contractor's liability to SGI arising directly or indirectly under or in connection with this Agreement or the performance or non-
performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
16.4.1 the Contractor will have no liability to SGI for any loss, harm, damage, cost or expense (including legal fees) suffered or incurred by SGI as a result of business or other decisions made by
the Contractor or the Covenantor in the course of providing the Services provided that such decisions were: 16.4.1.1 made in good faith and in the best interests of SGI; or 16.4.1.2 approved or authorised by the SGI; 16.4.2 the Contractor will have no liability whatsoever to SGI for any loss, harm, damage, cost or expense (including legal fees) in the nature of special, indirect or consequential loss or damage
(including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data); and 16.4.3 the aggregate of the Contractor's liability to SGI is otherwise limited to an amount not exceeding the amount of fees paid by SGI to the Contractor in the preceding 12 months under this
Agreement. 16.5 In relation to Non-excludable Obligations, the Contractor's liability to SGI for a failure to comply with any Non-excludable Obligation is limited to the cost of supplying the services again or
payment of the cost of having the services supplied again. 16.6 Notwithstanding anything provided in this clause 16 or anywhere else in this Agreement, the Contractor's liability to SGI shall not be limited under this clause 16 in respect of any loss, harm,
damage, cost or expense (including legal fees) suffered, paid, payable or incurred by SGI as a result of the fraud, wilful and malicious misconduct or bad faith of, or breach under clause 8 or clause 10 by, the
Contractor or Covenantor. 17. GST 17.1 Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have
the same meaning in this clause. 17.2 Any consideration to be paid or provided to the Contractor for a supply made by the Contractor under or in connection with this Agreement, unless specifically described in this Agreement
as GST inclusive, does not include an amount on account of GST. 17.3 Despite any other provision in this Agreement, if the Contractor makes a supply under or in connection with this Agreement on which GST is payable (not being a supply the consideration
for which is specifically described in this Agreement as GST inclusive): 17.3.1 the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and SGI must
also pay to the Contractor, an amount equal to the GST exclusive consideration multiplied by the prevailing rate of GST (GST Amount); and 17.3.2 the GST Amount must be paid to the Contractor by SGI without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be
provided. 17.4 If a payment to a party under this Agreement is a reimbursement or indemnification, or otherwise calculated by reference to a loss, cost or expense incurred by that party, then the payment
will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST group that party is a member of (as the case may be), is entitled in respect of that loss, cost or
expense.
17.5 The Contractor will give SGI a tax invoice in respect of a taxable supply made under or in connection with this Agreement. 18. Miscellaneous 18.1 This Agreement may only be amended in writing signed by the parties.
18.2 Any written amendment to the Agreement will prevail over any provisions in the Agreement that are inconsistent with the amendment.
18.3 This Agreement shall be governed by and interpreted in accordance with the law of South Australia.
18.4 The parties submit to the exclusive jurisdiction of the South Australian courts and tribunals in regards to any claim or matter arising under or out of this Agreement.
18.5 Termination of this Agreement will not prejudice any rights or remedies which either party had prior to the termination.
18.6 The operation of clauses 8, 9 and 10 will survive in full effect the termination of this Agreement.
18.7 This Agreement contains the entire agreement between the parties regarding the Contractor. This Agreement supersedes any prior agreement or
understanding (if any) between the parties and there is no collateral or other form of agreement between the parties in relation to the subject matter of this Agreement.
18.8 The failure by SGI to insist upon strict performance by the Contractor of any of the terms of this Agreement will not be deemed a waiver of any term or of a breach by the Contractor of any term of this
Agreement.
18.9 A waiver of any term of this Agreement by SGI must be in writing executed by a director of SGI or one of their other duly authorised officers or lawyers.
18.10 Every provision of this Agreement will be deemed severable as far as possible from the other provisions of this Agreement. If any provision is found to be void, illegal or unenforceable for any reason, it will be
deemed to be severed and omitted from this Agreement. This Agreement with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force.
18.11 This Agreement may be executed in any number of counterparts and such execution will be as effective and binding on the parties as if each party had signed each such copy. Satisfactory evidence of execution
of this Agreement will include evidence by facsimile of execution by the relevant party.
Executed as an Agreement on day of 2016 Executed Seed Genetics International Pty Ltd Name (please print) Executed SeedVision Pty Ltd Director Director/Company Secretary Name (please print) Name (please print) Signed in the presence of: Witness David John Holman Name (please print)
ANNEXURE A - CONTRACTOR ARRANGEMENTS Responsibilities Responsible for commercial and production oversight of SV Genetics (SVG) business, including: Commitment Years 1 and 2 high level of commitment to providing the required services to SGI then scaling back in Years 3 and 4. Contractor will be permitted to maintain a involvement with Pennington Seed as set out in the AAA. Service Fee Expenses Travel and business related costs would be reimbursed as follows: Invoicing The Contractor may issue invoices to SGI for payment of the Service Fee and reimbursement of Expenses.
Invoices for the Service Fee may be issued to SGI on a fortnightly proportionate basis. SGI must pay the amount specified in the invoice within 5 Business Days of receipt of the invoice. Invoices for reimbursement of Expenses may be issued to SGI on a fortnightly proportionate basis after the Expense has been incurred by the Contractor. SGI must pay the amount specified in the invoice within 5
Business Days of receipt of the invoice. Insurance The Contractor shall obtain at its own cost, the following insurances:
Alan Irvine Scott This Agreement was made on the __________ day of ________________ 2016, between: Seed Genetics International Pty Ltd ACN 061 114 814 hereinafter referred to as "SGI", and: Sunscott Pty Ltd (ACN 612 499 475) hereinafter referred to as the "Contractor", and Alan Irvine Scott of 49 Cullen Road, Ravensbourne QLD 4352 hereinafter referred to as the "Covenantor". Whereas: SGI wishes to engage the Contractor to provide the Services to SGI. The Contractor has agreed to provide the Services to SGI. The parties have agreed to be bound by the terms and conditions of this Agreement. 1. Definitions 1.1 "Affiliate" means a related body corporate of SGI (within the meaning of section 50 of the Corporations Act
2001 (Cth)). 1.2 "AAA" means the asset acquisition agreement between SGI, the Contractor and others dated on or around the date of this Agreement in respect of the sale of business
assets used in the operation of the hybrid sorghum and sunflower breeding, production, marketing and distribution business known as `SV Genetics'. 1.3 "Business" means the business of conducting plant research, breeding, production and marketing services in connection with seed products and other related services
carried on by SGI. 1.4 "Business Day" is a day other than a Saturday, Sunday or public holiday in the State of South Australia, Australia. 1.5 "Business Competing with the Business" means a business that at the relevant time is either:
1.6 "Commencement Date" means the date of Execution (as defined in the AAA). 1.7 "Confidential Information" includes all information obtained by the Contractor in the course of the engagement under this agreement that is of a confidential nature
regarding the previous, current or future business interests, methodology or affairs of SGI or of any person or entity with which SGI may deal or be concerned including, but not limited to: but excluding: 1.8 "Contractor Arrangements" means those arrangements as set out in Annexure A to this Agreement. 1.9 "Customer" means a customer of SGI with whom the Contractor had personal contact during the 12 months immediately before the termination of this
Agreement. 1.10 "End Date" means 30 June 2020. 1.11 "Government Agency" means a government or governmental, semi-governmental or judicial entity or similar authority, and includes a self regulatory organisation
established under statute or stock exchange. 1.12 "GST" means goods and services taxes and other similar taxes 1.13 "Insolvency Event" means any of the following:
1.14 "Intellectual Property Rights" means all intellectual property rights including without limitation: 1.15 "Moral Rights" means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship
falsely attributed, more particularly as conferred by the Copyright Act 1968 (Cth) and rights of a similar nature of anywhere in the world. 1.16 "Service Fee" means the fee as set out in the Contractor Arrangements set out in Annexure A to this Agreement. 1.17 "Services" means the services as set out in the Contractor Arrangements set out in Annexure A to this Agreement. 1.18 "Tax" means any tax, goods and services tax or value added tax, levy, charge, impost, duty, fee, assessment, contribution, deduction and compulsory loan or
withholding which is assessed, levied, imposed or collected by any Government Agency and/or Taxation Authority and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of
any of the above. 1.19 "Taxation Authority" means in respect of a Tax, the person who administers the imposition and collection of that Tax. 1.20 "Term" means the term of this agreement as set out in clause 5 of this agreement. In this Agreement, unless the context otherwise requires: 2.1 singular includes plural and plural includes singular; 2.2 headings do not affect interpretation; 2.3 words importing any gender include all other genders; and 2.4 reference to legislation includes any amendment to it or legislation substituted for it, including any regulations or instruments in force.
3. Services 3.1 The Contractor will provide the Services to the standards, at the times, location and in the frequency, quantity and manner as specified in the Contractor Arrangements.
3.2 Without limiting the Contractor's responsibilities pursuant to clause 3.1, the Contractor:
3.2.1 will comply with the requirements set out in the Contractor Arrangements; 3.2.2 will perform its obligations under this Agreement and throughout the Term in a competent and professional manner and in accordance with this Agreement; 3.2.3 has the necessary skills, experience, qualifications, resources, technology and know-how to supply the Services; 3.2.4 holds and will maintain all requisite licences, permits, permissions, consents and/or authorities necessary for the provision of the Services; 3.2.5 will ensure the Services will be performed in full compliance with all applicable laws, rules, regulations and customs. 3.3 If requested by SGI, the Contractor will supply evidence of compliance with these obligations under clause 3.2, to SGI's reasonable satisfaction.
3.4 The Contractor acknowledges that SGI is entering into this Agreement relying on the promises set out in clause 3.2.
3.5 The Contractor will:
3.5.1 comply with any reasonable direction of SGI relevant to the performance of the Services; 3.5.2 use all reasonable endeavours to ensure that the Services are completed by the End Date and in accordance with any timetable specified in the Contractor Arrangements and take
reasonable steps to minimize any delay; 3.5.3 notify SGI of any delay as soon as reasonably practicable after the Contractor first has cause to believe the Services or any part of them may be delayed; and 3.5.4 not bring SGI into disrepute. 3.6 The Contractor will comply with all policies of SGI as varied and notified to the Contractor from time to time. The Contractor agrees and acknowledges that such policies
and procedures form a part of the Contractor's obligations to SGI but do not impose legally binding obligations on SGI nor do such policies and procedures form a part of this Agreement. The Contractor acknowledges
that SGI's policies and procedures do not create enforceable rights in favour of the Contractor.
4. Contractor's staff and sub-contractors 4.1 Subject to clause 4.4, the Contractor must employ only the Covenantor or any other staff approved in writing by SGI to perform the Services.
4.2 The Contractor alone employs that staff.
4.3 Without limiting the previous clause, the Contractor must:
4.3.1 pay all employee entitlements for that staff including salary, holiday pay, sick pay, long service leave and superannuation;
4.3.2 deduct and remit from those employee entitlements any tax or levy required by law;
4.3.3 pay any payroll tax for that staff;
4.3.4 ensure that that staff is suitable and sufficiently skilled to satisfactorily perform the Services;
4.3.5 if SGI so requires, cease to permit a particular employee of the Consultant to perform the Services; and
4.3.6 ensure that that staff complies with all reasonable requirements of SGI relevant to the performance of the Services.
4.3.7 indemnify SGI against all claims and all costs, liability and expenses incurred by SGI in respect of a claim by that staff that SGI employs any of that staff. 4.4 The Contractor may sub-contract the performance of the Services to any person approved in writing by SGI.
4.5 The Contractor is responsible to SGI for the acts and omissions of any sub-contractor and any employee of a sub-contractor. Notwithstanding that the Contractor appoints a subcontractor, the Contractor re
responsible for the performance or non-performance of all of the obligations owed by the Contractor under this Agreement. 5. Term 5.1 From the Commencement Date the Contractor will provide the Services to SGI on the terms of this Agreement until the earlier of the End Date,
the completion of the Services to the satisfaction of SGI and the termination of this Agreement. 5.2 The parties agree that the terms and conditions of this
Agreement have applied to the engagement of the Contractor as and from the Commencement Date and will continue to apply. 6. Service Fee 6.1 Subject to the Contractor performing the Services to SGI's satisfaction, SGI will pay the Contractor the Service Fee in consideration of the Contractor providing the
Services to SGI in accordance with this Agreement.
6.2 Unless otherwise approved in writing prior to the relevant expense being incurred, SGI will only be liable for the expenses incurred by the Contractor in the course of performing the Services as described in the
Contractor Arrangement.
6.3 Subject to receipt of a valid tax invoice, any amount in respect of GST payable under clause 17 must be paid to the Supplier at the same time as the related Service Fee(s) is payable. 7. Insurance 7.1 The Contractor must at all times during the Term maintain (at the Contractor's expense) such insurance policies as set out in the Contractor Arrangements.
7.2 The Contractor will ensure that the insurance effected by it in accordance with this clause is effected with a reputable insurer approved by SGI. 8.1 SGI is and remains the sole beneficial owner of the Confidential Information.
8.2 During and at all times after the termination of this Agreement, the Contractor and the Covenantor must not, except in the ordinary course of this Agreement, use or disclose to any third party, in any fo
means, and must keep in the strictest confidence, all Confidential Information of which the Contractor or the Covenantor becomes aware whether through the performance of the Contractor's duties under this
Agreement or otherwise.
8.3 Clause 8.2 does not apply where use or disclosure of Confidential Information by the Contractor or the Covenantor is required by law or where the Confidential Information is in the public domain at the t
use or disclosure other than by reason of a breach of this Contract.
8.4 The Contractor and the Covenantor must take all reasonable steps to prevent the use or disclosure of Confidential Information by a third party.
8.5 The Contractor and the Covenantor agree to keep the contents of this Agreement confidential. 8.6 All property, goodwill and benefit in any of SGI's business or in any Confidential Information including in any lists of its customers or suppliers belongs to or on creation, will belong to SGI. 9.1 All Intellectual Property Rights in any document, work or other matter (including without limitation plant material, seed and other germplasm) created or contributed to
by the Contractor in the course of or in connection with this Agreement or in connection with the Contractor using SGI's information and/or resources belong to SGI. The Contractor must immediately disclose to SGI all
Intellectual Property Rights created or contributed to by the Contractor. By this Contract (if applicable), the Contractor assigns any such Intellectual Property Rights to SGI. The assignment takes effect as each part of
the Intellectual Property Rights come into existence, and in respect of any part of the Intellectual Property Rights that came into existence prior to the date of this Agreement, the assignment takes effect upon
execution. The Contractor must assist SGI or its nominee at SGI's cost to obtain any statutory or other protection for Intellectual Property Rights as determined by SGI. The Contractor must not oppose the grant of
any such statutory or other protection to SGI or its nominee nor assist anyone else to oppose the granting of that statutory or other protection to SGI or its nominee or to obtain any statutory or other protection for those
Intellectual Property Rights in competition with SGI or its nominee.
9.2 To the extent that the Contractor is the author of any works in the course of or in connection with this Agreement ("Works") and Moral Rights rest in the Contractor in relation to the Works, the
Contractor irrevocably and unconditionally consents to SGI being attributed as the author of the Works. The Contractor will not make any claim in respect of any infringement or contravention of the Contractor's Moral
Rights (whether it be an act or omission) arising from or in connection with the use, treatment, alteration, attribution of or dealing with the works by SGI.
9.3 The Contractor irrevocably appoints SGI and any director of SGI jointly and severally to be the Contractor's attorney, to sign any document or do anything else in the Contractor's name to give effect to this clause
9. 10. Restraint 10.1 Each of the Contractor and the Covenantor must not, as principal, employee, consultant, agent, director, officer, partner or participant in a joint
venture, corporation, trust or other entity or in any other capacity, directly or indirectly: (b) carry on or be engaged in a Business Competing with the Business; (c) induce, solicit or attempt to induce or solicit any Customer to deal with the Contractor, the Covenantor or any other person or body; (d) accept work similar to that performed by SGI from any Customer; (e) induce, solicit or attempt to induce or solicit any person to leave the employment of SGI; 10.1.2 (a) during this Agreement; (b) within 3 years after the termination of this Agreement; (c) within 2 years after the termination of this Agreement; (d) within 12 months after the termination of this Agreement; (e) within 6 months after the termination of this Agreement; (f) within 3 months after the termination of this Agreement;
10.1.3 (a) in Australia; (b) in South Australia; (c) in Adelaide; (d) within 5 kilometres from the General Post Office, Adelaide. 10.2.1 the start of clause 10.1;
10.2.2 a conduct in clause 10.1.1;
10.2.3 a period in clause 10.1.2; and 10.2.4 an area in clause 10.1.3;
is a separate clause. All these combinations apply cumulatively and each combination is severable from each other combination. 10.3 Each combination (as set out in clause 10.2) must be read down to the extent necessary to be valid. 10.4 If any individual combination (as set out in clause 10.2) cannot be read down according to clause 10.3, it must be severed. The severance of a particular combination shall not prejudice or
in any way affect the validity or enforceability of any other combination. 10.5 Without limiting SGI's other remedies, SGI will be entitled to injunctive relief to restrain a breach by the Contractor or the Covenantor of the terms of this clause 10, in addition to any other
rights or remedies which SGI may have. 10.6 Clause 10 does not apply to any activity which is excluded from the scope of the restraint provisions in the AAA. 11. Termination 11.1 Either party may terminate this Contract by the giving of one (1) month's notice in writing to the other party. 11.2 If either party breaches a term of this Agreement, ("Defaulting Party") and the breach can be remedied, the other party ("Non- Defaulting Party")
may give the Defaulting Party not less than thirty (30) days' notice to remedy the breach. If the breach is not remedied within the period stipulated in the notice, the Non-Defaulting Party may give the Defaulting Party a
notice immediately terminating this Agreement. 11.3 Either party may terminate this Agreement by notice to the other party immediately upon any of the following events: 11.3.1 if the other party commits a serious breach of this Agreement which cannot be remedied; 11.3.2 a persistent and deliberate failure by the Contractor to comply with SGI's policies and procedures in a material respect; 11.3.3 conduct by the Contractor which is likely to cause a serious risk to health and safety; 11.3.4 the Contractor becoming of unsound mind or becoming liable to be dealt with under the law relating to mental health;
11.3.5 the Contractor failing to comply with any reasonable directions of SGI in a material respect; 11.3.6 conduct by the Contractor that brings in SGI's reasonable opinion, SGI into disrepute; 11.3.7 if an Insolvency Event occurs in relation to the other party; or 11.3.8 if the other party commits a serious criminal offence. 11.4 Upon termination of this Agreement (or at any time upon reasonable request by SGI), the Contractor must immediately: 11.4.1 return to SGI all documents and records in the Contractor's control (whether printed, digital, electronic or computer materials); 11.4.2 delete any documents and/or records held electronically in any medium in the Contractor's control (which deletion may be supervised and/or confirmed by SGI in such a manner as SGI
deems fit); 11.4.3 return to SGI all property belonging to or leased by SGI in the Contractor's control, including any stationery, cheque books, books, documents, records, discs, access cards, keys, mobile
phones, computer hardware and software, credit cards, motor vehicles, computer log-in codes, stock, samples, safety and/or branded clothing belonging to SGI and any other property of SGI or which bears SGI's
business or trade name, trade marks or registered names or if which SGI owns or is entitled to copyright or which contains any of the Confidential Information; and 11.4.4 provide SGI with a statutory declaration regarding the Contractor's compliance with this clause. 11.5 If upon return of SGI's property pursuant to clause 11.4 SGI considers in its reasonable opinion that the Contractor has caused damage to such property, not being fair wear and tear, SGI
shall be entitled to deduct an amount in respect of such damage from any payments SGI is required to make to the Contractor upon termination. 11.6 If SGI terminates this Agreement pursuant to this clause 11, SGI will not be liable to the Contractor for any Claims by the Contractor relating to the termination of this Agreement by SGI,
including any additional payment for losses or expenses incurred by the Contractor. 12. Suspension If: then SGI may at its discretion suspend the Contractor's provision of Services with or without suspending payment of the Service Fee in order to investigate the complaint or belief or until the
third party investigation with respect to the Contractor is complete.
13. Relationship 13.1 The Contractor is a contractor independent of the control of SGI. 13.2 The parties are not principal and agent, partners, trustee and beneficiary, or employer and employee. 13.3 Neither party may: 13.3.1 hold out their agents, contractors or employees as the agents, contractors or employees of the other party; 13.3.2 pledge the credit of the other party; or 13.3.3 contract on behalf of the other party 14. Warranties 14.1 The Contractor warrants that: 14.1.1 it is not entitled to receive compulsory superannuation contributions from SGI for the purposes of the Superannuation Guarantee (Administration) Act 1992 as amended or replaced
from time to time; 14.1.2 it is not entitled to receive annual leave or any other type of leave pursuant to the Fair Work Act 2009 or any instruments made pursuant to that legislation; 14.1.3 it is not entitled to receive long service leave in accordance with the Industrial Relations Act 1999(QLD); 14.1.4 tax is not required to be withheld by SGI from the Services Fees on a PAYG (instalment) basis; 14.1.5 it has the insurance policies required by this Agreement and warrants that such insurance policies will be maintained throughout the term of this Agreement; (collectively, "Warranties"). 14.2 Subject to clause 14.4, the Contractor indemnifies SGI in respect of any claims made against SGI by the Contractor or the Covenantor which are in breach of the Warranties, including any
reasonable defence costs incurred by SGI in respect of such claims. 14.3 Without prejudicing SGI's rights in the event of a breach of the Warranties, SGI may recover from the Contractor any amount for which SGI is indemnified by the Contractor under clause
14.2 from any amounts that SGI owes the Contractor at SGI's discretion. 14.4 SGI and the Contractor expressly acknowledge and agree that the liability of the Contractor, including to indemnify SGI, for any breach of the Warranties is limited to: 14.4.1 the value of the claims made against SGI by the Contractor or Covenantor in breach of the Warranties; and 14.4.2 any reasonable costs incurred by SGI in respect of such claims, and in no case shall such liability extend to any liabilities,
14.5 The parties acknowledge and agree that they must act at all times in a manner consistent with the Warranties being true and correct and the relationship between the parties (as described
in clause 13), and that no party shall seek to deny the truth and accuracy of the Warranties or the nature of the relationship between the parties (as described in clause 13) in any forum. 15. Affiliates, employees and sub-contractors 15.1 At the request and cost of SGI, the Contractor must enter into a deed with an Affiliate containing obligations similar to those set out in
clause 9 (Intellectual Property) and clause 10 (Restraint) 15.2 The Contractor must ensure that its employees, agents and sub-contractors comply with clause 9 (Intellectual Property) and clause 10 (Restraint) as if they were the
Contractor. 15.3 At the request and cost of SGI, the Contractor must cause any of its employees, agents or sub-contractors nominated by SGI to enter into a deed, with SGI or an Affiliate or both, containing
obligations similar to those set out in clause 9 (Intellectual Property) and clause 10 (Restraint). 16. Limitations No exclusion or limitation 16.1 To the extent SGI acquires goods or services from the Contractor as a Consumer (within the meaning of section 3 of the Australian Consumer Law, which is set out in Schedule 2 to the
Competition and Consumer Act 2010 (Cth)), SGI may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by
agreement. 16.2 Nothing in this clause 16 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any
liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or modification of which would: 16.2.1 contravene that statute; or 16.2.2 cause any term of this Agreement to be void, (Non-excludable Obligation) Exclusion of implied obligations 16.3 Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom, or the general
law that impose any liability or obligation on the Contractor, the Covenantor or any of their Affiliates are expressly excluded under this Agreement. Limitation of liability 16.4 Except in relation to Non-excludable Obligations, the Contractor's liability to SGI arising directly or indirectly under or in connection with this Agreement or the performance or non-
performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
16.4.1 the Contractor will have no liability to SGI for any loss, harm, damage, cost or expense (including legal fees) suffered or incurred by SGI as a result of business or other decisions made by
the Contractor or the Covenantor in the course of providing the Services provided that such decisions were: 16.4.1.1 made in good faith and in the best interests of SGI; or 16.4.1.2 approved or authorised by the SGI; 16.4.2 the Contractor will have no liability whatsoever to SGI for any loss, harm, damage, cost or expense (including legal fees) in the nature of special, indirect or consequential loss or damage
(including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data); and 16.4.3 the aggregate of the Contractor's liability to SGI is otherwise limited to an amount not exceeding the amount of fees paid by SGI to the Contractor in the preceding 12 months under this
Agreement. 16.5 In relation to Non-excludable Obligations, the Contractor's liability to SGI for a failure to comply with any Non-excludable Obligation is limited to the cost of supplying the services again or
payment of the cost of having the services supplied again. 16.6 Notwithstanding anything provided in this clause 16 or anywhere else in this Agreement, the Contractor's liability to SGI shall not be limited under this clause 16 in respect of any loss, harm,
damage, cost or expense (including legal fees) suffered, paid, payable or incurred by SGI as a result of the fraud, wilful and malicious misconduct or bad faith of, or breach under clause 8 or clause 10 by, the
Contractor or Covenantor. 17. GST 17.1 Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have
the same meaning in this clause. 17.2 Any consideration to be paid or provided to the Contractor for a supply made by the Contractor under or in connection with this Agreement, unless specifically described in this Agreement
as GST inclusive, does not include an amount on account of GST. 17.3 Despite any other provision in this Agreement, if the Contractor makes a supply under or in connection with this Agreement on which GST is payable (not being a supply the consideration
for which is specifically described in this Agreement as GST inclusive): 17.3.1 the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and SGI must
also pay to the Contractor, an amount equal to the GST exclusive consideration multiplied by the prevailing rate of GST (GST Amount); and 17.3.2 the GST Amount must be paid to the Contractor by SGI without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be
provided. 17.4 If a payment to a party under this Agreement is a reimbursement or indemnification, or otherwise calculated by reference to a loss, cost or expense incurred by that party, then the payment
will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST group that party is a member of (as the case may be), is entitled in respect of that loss, cost or
expense. 17.5 The Contractor will give SGI a tax invoice in respect of a taxable supply made under or in connection with this Agreement.
18. Miscellaneous 18.1 This Agreement may only be amended in writing signed by the parties.
18.2 Any written amendment to the Agreement will prevail over any provisions in the Agreement that are inconsistent with the amendment.
18.3 This Agreement shall be governed by and interpreted in accordance with the law of South Australia.
18.4 The parties submit to the exclusive jurisdiction of the South Australian courts and tribunals in regards to any claim or matter arising under or out of this Agreement.
18.5 Termination of this Agreement will not prejudice any rights or remedies which either party had prior to the termination.
18.6 The operation of clauses 8, 9 and 10 will survive in full effect the termination of this Agreement.
18.7 This Agreement contains the entire agreement between the parties regarding the Contractor. This Agreement supersedes any prior agreement or understanding (if any) between the parties and there is no
collateral or other form of agreement between the parties in relation to the subject matter of this Agreement.
18.8 The failure by SGI to insist upon strict performance by the Contractor of any of the terms of this Agreement will not be deemed a waiver of any term or of a breach by the Contractor of any term of this
Agreement.
18.9 A waiver of any term of this Agreement by SGI must be in writing executed by a director of SGI or one of their other duly authorised officers or lawyers.
18.10 Every provision of this Agreement will be deemed severable as far as possible from the other provisions of this Agreement. If any provision is found to be void, illegal or unenforceable for any reason, it will be
deemed to be severed and omitted from this Agreement. This Agreement with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force.
18.11 This Agreement may be executed in any number of counterparts and such execution will be as effective and binding on the parties as if each party had signed each such copy. Satisfactory evidence of execution
of this Agreement will include evidence by facsimile of execution by the relevant party.
Executed Seed Genetics International Pty Ltd Name (please print) Executed SeedVision Pty Ltd Director Director/Company Secretary Name (please print) Name (please print) Signed in the presence of: Witness Alan Irvine Scott Name (please print)
ANNEXURE A - CONTRACTOR ARRANGEMENTS Responsibilities Responsible for the development and identification of new improved Grain and Forage Sorghum and Sunflower parents and hybrids and the coordination of associated breeding and testing programs. Key results areas will include: Note: If S&W requests that Mr. Scott support its corn breeding activities, then the parties will mutually agree to an additional service provision commitment and compensation for such activities. The expenses
(and any revenue) associated with any such corn breeding activities will not be taken into account when calculating the earn-out payable to SVG under the Asset Acquisition Agreement. Commitment To the level required to deliver the required service provision outcomes. Service Fee
Expenses Travel and business related costs would be reimbursed as follows: Invoicing The Contractor may issue invoices to SGI for payment of the Service Fee and reimbursement of Expenses. Invoices for the Service Fee may be issued to SGI on a fortnightly proportionate basis. SGI must pay the amount specified in the invoice within 5 Business Days of receipt of the invoice. Invoices for reimbursement of Expenses may be issued to SGI on a fortnightly proportionate basis after the Expense has been incurred by the Contractor. SGI must pay the amount specified in the invoice within 5
Business Days of receipt of the invoice. Insurance The Contractor shall obtain at its own cost, the following insurances:
Schedule 4 - Accredited Investor Questionnaire
INTRODUCTION TO ACCREDITED INVESTOR QUESTIONNAIRE The following Accredited Investor Questionnaire is being provided in connection with the proposed acquisition of assets from SV Genetics Pty Ltd (the
"Company") by S&W Seed Company ("S&W"). Pursuant to the proposed acquisition, S&W will acquire certain assets of the Company in exchange for,
among other consideration, the issuance of shares of Common Stock of S&W (the "Proposed Transaction"). The Proposed Transaction is not being registered under the Securities Act
of 1933 (the "Securities Act"), but rather is being made pursuant to the private placement exemption from registration provided by Section 4(2) of the Securities Act and Regulation D
thereunder. The purpose of this Questionnaire is to determine whether you are an "accredited investor". Please complete this Questionnaire and return it to __________________. Your answers will be kept strictly confidential, except that the Company may present the Questionnaire to
S&W and the legal advisors to S&W and the Company to assure S&W that the issuance of shares of Common Stock of S&W to you in the Proposed Transaction will not violate applicable law.
ACCREDITED INVESTOR QUESTIONNAIRE SECTION I - FOR INDIVIDUALS (NOT ENTITIES) The undersigned understands that S&W Seed Company will rely on the following information in determining if the undersigned is an accredited investor under Rule 501 of Regulation D under the
Securities Act of 1933, as amended. 1. Full Name: ____________________________________________ 2. Listed below are certain of the categories of "accredited investors" as described in Regulation D promulgated under the Securities Act. The undersigned satisfies one or more of the following
categories of "accredited investors" as indicated in the space(s) provided below: (Check any and all appropriate categories) o
A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds U.S.$1,000,000. o
A natural person who had an individual income in excess of U.S.$200,000 in each of the two most recent years or joint income with that person's spouse in excess of U.S.$300,000 in each of those years and has
a reasonable expectation of reaching the same income level in the current year. INDIVIDUALS SKIP TO PAGE 4. ENTITY INVESTORS COMPLETE SECTION II.
SECTION II - FOR ENTITIES (NOT INDIVIDUALS) The undersigned understands that S&W Seed Company will rely on the following information in determining if the undersigned is an accredited investor under Rule
501 of Regulation D under the Securities Act. 1. Full Name: 2. Indicate form of investor: o
Corporation o
Partnership o
Other: 3. State or other jurisdiction of organization: __________________ 4. Listed below are certain of the categories of "accredited investors" as described in Regulation D promulgated under the Securities Act. The undersigned satisfies one or more
of the following categories of "accredited investors" as indicated in the space(s) provided below: (Check any and all appropriate categories) o
A bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity. o
A broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934. o
An insurance company as defined in section 2(a)(13) of the Securities Act. o
An investment company registered under the Investment Company Act of 1940 (the "1940 Act") or a business development company as defined in section 2(a)(48) of the 1940 Act. o
A Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958. o
A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess
of U.S.$5,000,000. o
An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 (the "1974 Act") if the investment decision is made by a plan fiduciary, as defined
in section 3(21) of the 1974 Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of U.S.$5,000,000
or, if a self-directed plan, with investment decisions made solely by persons who fall within one of the categories described under Section I above. o
A private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940. o
Any of the following entities not formed for the specific purpose of acquiring an equity interest in S&W (the "Interest") and with total assets in excess of U.S.$5,000,000: (i) any organization
described in Section 501(c)(3) of the Internal Revenue Code; (ii) a corporation; (iii) a Massachusetts or similar business trust; or (iv) a partnership. o
A trust, with total assets in excess of U.S.$5,000,000, not formed for the specific purpose of acquiring the Interest, whose purchase is directed by a person who, either alone or with his purchaser representative(s)
has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment. o
An entity in which all the equity owners are one of the above or who are natural persons who fall within one of the categories described under Section I above.
SIGNATURE PAGE TO ACCREDITED INVESTOR QUESTIONNAIRE 1. Accredited Investor Certification. By signing this page below, the undersigned represents and warrants to S&W Seed Company that the undersigned (mark one space
only): _____ is an "accredited investor" and, if an entity, the undersigned also represents it has not been organized for the specific purpose of acquiring an interest in S&W Seed Company; OR _____ is not an "accredited investor" SIGNATURE BLOCK FOR INDIVIDUALS SIGNATURE BLOCK FOR ENTITIES Name (print) Name Signature By: Authorized Signatory (print name and title of Authorized Signatory) Date Signed: Date Signed:
Schedule 5 - Net Income Model Financial Period Revenue x,xxx Cost of Revenue x,xxx Gross Profit x,xxx Operating Expenses Selling, general and administrative expenses x,xxx Research and development expenses x,xxx Depreciation and Amortization x,xxx Impairment charges x,xxx Disposal of property, plant and equipment loss (gain) x,xxx Total operating Expenses x,xxx Income (loss) from operations x,xxx Other expense Foreign currency loss (gain) x,xxx Interest expense x,xxx Income (loss) before income taxes x,xxx Provision (benefit) for income taxes x,xxx Net income (loss) x,xxx
This schedule has been omitted pursuant to Item 601(b)(2) of Regulation S-K since, in the Company's opinion, the omitted
information does not contain information that is material to an investment decision, and such information is not otherwise disclosed in
the Acquisition Agreement. Omitted is a table providing the complete list of the SVG plant and germplasm varieties that are the subject
of the transaction and certain information about each. The Company hereby undertakes to furnish supplementally a copy of the omitted
schedule to the Securities and Exchange Commission upon request.
This schedule has been omitted pursuant to Item 601(b)(2) of Regulation S-K since, in the Company's opinion, the omitted
information does not contain information that is material to an investment decision, and such information is
not otherwise disclosed in the Acquisition Agreement. Omitted is a table providing a summary of SVG's marketing matrix of licensing
arrangements for its sorghum and sunflower seed business. The Company hereby undertakes to furnish a copy of the omitted schedule
to the Securities and Exchange Commission upon request.
This schedule has been omitted pursuant to Item 601(b)(2) of Regulation S-K since, in the Company's opinion, the omitted information does not contain information that is
material to an investment decision, and such information is not otherwise disclosed in the Acquisition Agreement. Omitted is information highlighting the principal terms of a verbal
lease of a glass house, seed laboratory and seed storage facility transferred in connection with the transaction. The Company hereby undertakes to furnish supplementally a copy of
the omitted schedule to the Securities and Exchange Commission upon request. This schedule has been omitted pursuant to Item 601(b)(2) of Regulation S-K since, in the Company's opinion, the omitted information does not contain information that is
material to an investment decision, and such information is not otherwise disclosed in the Acquisition Agreement. Omitted is a table providing the complete list of the SVG contracts
that are the subject of the transaction, including their respective dates and counterparties. The Company hereby undertakes to furnish supplementally a copy of the omitted schedule
to the Securities and Exchange Commission upon request.
Schedule 8 - Terms of
current Ravensbourne lease