0001341004-15-000069.txt : 20150203 0001341004-15-000069.hdr.sgml : 20150203 20150202213751 ACCESSION NUMBER: 0001341004-15-000069 CONFORMED SUBMISSION TYPE: SC 13G/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20150203 DATE AS OF CHANGE: 20150202 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: S&W Seed Co CENTRAL INDEX KEY: 0001477246 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 271275784 STATE OF INCORPORATION: NV FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13G/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-86123 FILM NUMBER: 15569015 BUSINESS ADDRESS: STREET 1: 25552 SOUTH BUTTE AVENUE CITY: FIVE POINTS STATE: CA ZIP: 93624 BUSINESS PHONE: 559 884 2535 MAIL ADDRESS: STREET 1: P.O. BOX 235 CITY: FIVE POINTS STATE: CA ZIP: 93624 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MFP INVESTORS LLC CENTRAL INDEX KEY: 0001105685 IRS NUMBER: 223608480 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13G/A BUSINESS ADDRESS: STREET 1: 667 MADISON AVE, 25TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10065 BUSINESS PHONE: 212 752-7280 MAIL ADDRESS: STREET 1: 667 MADISON AVE, 25TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10065 SC 13G/A 1 form13ga.htm MFP INVESTORS FORM SC 13G/A form13ga.htm
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13G/A
 
Under the Securities Exchange Act of 1934

(Amendment No.  1)*

S&W Seed Company
(Name of Issuer)
 
Common Stock
(Title of Class of Securities)
 
785135104
(CUSIP Number)
 
December 30, 2014
(Date of Event Which Requires Filing of this Statement)

Check the appropriate box to designate the rule pursuant to which this Schedule is filed:

£ Rule 13d-l(b)

T Rule 13d-l(c)

£ Rule 13d-l(d)

*This Amendment No. 1 to Schedule 13G is being filed to correct the Schedule 13G filed by the Reporting Persons on January 7, 2015, which inadvertently failed to disclose the creation of a group as a result of such Reporting Person’s execution of a Voting Agreement dated December 30, 2014, by and among the Issuer and certain shareholders named therein and failed to include certain shares which may be deemed to be beneficially owned by MFP Partners, L.P. as a result of the creation of such group.  Upon discovering this error, the reporting persons promptly took steps to file this Amendment No. 1 to Schedule 13G.

The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 

 
Page 1 of 8 pages
 
 
 
CUSIP No. 785135104
 

   
1.
Names of Reporting Persons
   
 
MFP Partners, L.P.(1)
 
c/o MFP Investors LLC
 
667 Madison Avenue, 25th Floor
 
New York, NY 10065
   
   
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
 
S  (a)
 
£  (b)
   
   
3.
SEC Use Only
   
   
4.
Citizenship or Place of Organization       Delaware
   
   
 
5.
Sole Voting Power
     
Number of
    
Shares
6.
Shared Voting Power       2,309,652(2)
Beneficially
    
Owned by Each
    
Reporting Person   
7.
Sole Dispositive Power
With:
    
     
 
8.
Shared Dispositive Power       1,294,000(2)
   
   
9.
Aggregate Amount Beneficially Owned by Each Reporting Person       1,294,000(2)
   
   
10.
Check if the Aggregate Amount in Row (9) Excludes Certain Shares       x
   
   
11.
Percent of Class Represented by Amount in Row (9)       9.99%(3)
   
   
12.
Type of Reporting Person (See Instructions)
 
PN
   

(1) MFP Investors LLC is the general partner of MFP Partners, L.P. (“MFP”).  Michael F. Price is the managing partner of MFP and the managing member and controlling person of MFP Investors LLC.

(2) Due to their respective relationships with each other, each of the Reporting Persons (as defined below) may be deemed to share voting and dispositive power with respect to 1,294,000 shares of Common Stock of the Issuer (“Common Stock”) directly owned by MFP.  On December 30, 2014, MFP executed that certain Voting Agreement by and among the Issuer and certain shareholders named therein.  The other shareholders party to the Voting Agreement beneficially own 1,015,652 shares of Common Stock, in the aggregate, representing approximately 7.84% of the outstanding shares of Common Stock.  Due to the Voting Agreement, MFP and the other shareholders may each be deemed to share voting power, but not dispositive power, with respect to 2,309,652 shares of Common Stock.  The Reporting Persons disclaim “beneficial ownership”, within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, of the 1,015,652 shares of Common Stock beneficially owned by the other shareholders.

(3) Calculation based on 12,952,801 shares of Common Stock, which includes 11,658,801 shares of Common Stock outstanding pursuant to the issuer’s most recent Form 10-Q and the issuance of 1,294,000 shares of Common Stock to MFP on December 31, 2014.

 
Page 2 of 8 pages
 
 
 
CUSIP No. 785135104

   
1.
Names of Reporting Persons
   
 
MFP Investors LLC(1)
 
667 Madison Avenue, 25th Floor
 
New York, NY 10065
   
   
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
 
£  (a)
 
£  (b)
   
   
3.
SEC Use Only
   
   
4.
Citizenship or Place of Organization       Delaware
   
   
 
5.
Sole Voting Power
     
Number of
    
Shares
6.
Shared Voting Power       1,294,000
Beneficially
    
Owned by Each
    
Reporting Person    
7.
Sole Dispositive Power
With:
    
     
 
8.
Shared Dispositive Power       1,294,000
   
   
9.
Aggregate Amount Beneficially Owned by Each Reporting Person       1,294,000
 
   
10.
Check if the Aggregate Amount in Row (9) Excludes Certain Shares (See Instructions)
   
   
11.
Percent of Class Represented by Amount in Row (9)       9.99%(2)
   
   
12.
Type of Reporting Person (See Instructions)
 
OO
   

(1) MFP Investors LLC is the general partner of MFP Partners, L.P.  Michael F. Price is the managing partner of MFP Partners, L.P. and managing member and controlling person of MFP Investors LLC.

(2) Calculation based on 12,952,801 shares of Common Stock of the issuer (“Common Stock”), which includes 11,658,801 shares of Common Stock outstanding pursuant to the issuer’s most recent Form 10-Q and the issuance of 1,294,000 shares of Common Stock to MFP Partners, L.P. on December 31, 2014.  Due to their respective relationships with each other, each of the Reporting Persons (as defined herein) may be deemed to share voting and dispositive power with respect to the shares of Common Stock reported herein.


 
Page 3 of 8 pages
 
 
 
CUSIP No. 785135104

   
1.
Names of Reporting Persons
   
 
Michael F. Price(1)
 
c/o MFP Investors LLC
 
667 Madison Avenue, 25th Floor
 
New York, NY 10065
   
   
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
 
£  (a)
 
£  (b)
   
   
3.
SEC Use Only
   
   
4.
Citizenship or Place of Organization       United States of America
   
   
 
5.
Sole Voting Power
     
Number of
    
Shares
6.
Shared Voting Power       1,294,000
Beneficially
    
Owned by Each
    
Reporting Person    
7.
Sole Dispositive Power
With:
    
     
 
8.
Shared Dispositive Power       1,294,000
   
   
9.
Aggregate Amount Beneficially Owned by Each Reporting Person       1,294,000
 
   
10.
Check if the Aggregate Amount in Row (9) Excludes Certain Shares (See Instructions)
   
   
11.
Percent of Class Represented by Amount in Row (9)       9.99%(2)
   
   
12.
Type of Reporting Person (See Instructions)
 
IN
   

(1) MFP Investors LLC is the general partner of MFP Partners, L.P.  Michael F. Price is the managing partner of MFP Partners, L.P. and managing member and controlling person of MFP Investors LLC.

(2) Calculation based on 12,952,801 shares of Common Stock of the issuer (“Common Stock”), which includes 11,658,801 shares of Common Stock outstanding pursuant to the issuer’s most recent Form 10-Q and the issuance of 1,294,000 shares of Common Stock to MFP Partners, L.P. on December 31, 2014.  Due to their respective relationships with each other, each of the Reporting Persons (as defined herein) may be deemed to share voting and dispositive power with respect to the shares of Common Stock reported herein.


 
Page 4 of 8 pages
 
 
 
CUSIP No. 785135104
 
Item 1.
 
 
(a)
Name of Issuer
     
   
S&W Seed Company
     
 
(b)
Address of Issuer's Principal Executive Offices
     
   
25552 South Butte Avenue
   
Five Points, California 93624
   
USA
     
Item 2.
    
     
 
(a)
Name of Person Filing
     
   
MFP Partners, L.P.
   
MFP Investors LLC
   
Michael F. Price
     
 
(b)
Address of Principal Business Office or, if none, Residence
     
   
667 Madison Avenue, 25th Floor
   
New York, NY 10065
     
 
(c)
Citizenship
     
   
MFP Partners, L.P. and MFP Investors LLC are each organized under the laws of the state of Delaware.  Michael F. Price is a citizen of the United States of America.
     
 
(d)
Title of Class of Securities
     
   
Common Stock, par value $0.001 per share
     
 
(e)
CUSIP Number
     
   
785135104
     
Item 3.
If this statement is filed pursuant to §§240.13d-l(b) or 240.13d-2(b) or (c), check whether the person filing is a:
   
 
Not applicable.
   
Item 4.
Ownership.
   
 
MFP Partners, L.P. (“MFP”) directly owns 1,294,000 shares of Common Stock, representing 9.99% of the total number of shares of Common Stock outstanding.  As the investment advisor to MFP, MFP Investors LLC is deemed to share voting and dispositive power with respect to 1,294,000 shares of Common Stock, representing 9.99% of the total number of shares of Common Stock outstanding.  As Managing Member and controlling person of MFP Investors LLC, Michael F. Price is deemed to share voting and dispositive power with respect to 1,294,000 shares of Common Stock, representing 9.99% of the total number of shares of Common Stock outstanding.
 
On December 30, 2014, MFP executed that certain Voting Agreement by and among the Issuer and certain shareholders named therein (the “Voting Agreement”).  A copy of the Voting Agreement is attached to this Amendment No. 1 as Exhibit 2.  The other shareholders party to the Voting Agreement beneficially own 1,015,652 shares of Common Stock, in the aggregate, representing approximately 7.84% of the outstanding shares of Common Stock.  Due to the Voting Agreement, MFP and the other shareholders may each be deemed to share voting power, but not dispositive power, with respect to 2,309,652 shares of Common Stock.  The Reporting Persons disclaim “beneficial ownership”, within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, of the 1,015,652 shares of Common Stock beneficially owned by the other shareholders.


 
Page 5 of 8 pages
 
 
 
CUSIP No. 785135104

 
The ownership percentages set forth above are based on 11,658,801 shares of Common Stock outstanding as set forth in the Quarterly Report on Form 10-Q filed by the issuer with the Securities and Exchange Commission on November 11, 2014 and the issuance of 1,294,000 shares of Common Stock to MFP on December 31, 2014.

Item 5.
Ownership of Five Percent or Less of a Class
   
 
Not applicable.
   
Item 6.
Ownership of More than Five Percent on Behalf of Another Person
   
 
MFP Investors LLC manages investments for MFP Partners, L.P. which beneficially owns more than 5% of the shares of Common Stock.
   
Item 7.
Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on By the Parent Holding Company or Control Person
   
 
Not applicable.
   
Item 8.
Identification and Classification of Members of the Group
   
 
On December 30, 2014, MFP executed the Voting Agreement by and among the Issuer and certain shareholders named therein.  As a result of entering into the Voting Agreement, MFP and the shareholders named therein may be deemed to have formed a group pursuant to Rule 13d-5 promulgated under the Securities Exchange Act of 1934 and the group formed thereby shall be deemed to have acquired beneficial ownership of the 2,309,652 shares of Common Stock held by such shareholders.  The Voting Agreement, which is attached as Exhibit 2 to this Amendment No. 1, discloses the number of shares of Common Stock owned by each signatory to the Voting Agreement as of December 30, 2014.
   
Item 9.
Notice of Dissolution of Group
   
 
Not applicable.
   
Item 10.
Certification
   
By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect, other than activities solely in connection with a nomination under §240.14a–11.


 
Page 6 of 8 pages
 
 
 
CUSIP No. 785135104
 
SIGNATURE
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct as of February 2, 2015.

 
MFP Partners, L.P.
   
 
/s/ Michael F. Price
 
          Signature
     
 
Name:    
Michael F. Price
 
Title:
Managing Partner
     
     
 
MFP Investors LLC
   
 
/s/ Michael F. Price
       
          Signature
   
 
Name:
Michael F. Price
 
Title:
Managing Member
     
     
 
MICHAEL F. PRICE
   
 
/s/ Michael F. Price
    
          Signature
 
Name:
Michael F. Price
 
 
 
Page 7 of 8 pages
 
 
 
CUSIP No. 785135104
 
EXHIBITS

Exhibit
    
Number    
 
Title
     
1
  
Joint Filing Agreement dated January 7, 2015 among the Reporting Persons (filed as Exhibit 1 to the Schedule 13G filed by the Reporting Persons on January 7, 2015)
     
2
  
Voting Agreement dated December 30, 2014, by and among the Issuer and certain shareholders named therein (filed herewith)
 
 
 
 

 

 
 
 
 
 
 
 
 
Page 8 of 8 pages
 
 EX-2 2 ex2.htm EXHIBIT 2 VOTING RIGHTS AGREEMENT ex2.htm
 
 
EXHIBIT 2
 
 
VOTING AGREEMENT
 
VOTING AGREEMENT, DATED AS OF DECEMBER 30, 2014 (THIS "AGREEMENT"), BY AND AMONG S&W SEED COMPANY, A NEVADA CORPORATION (THE "COMPANY"), AND THE SHAREHOLDERS LISTED ON THE SIGNATURE PAGES HERETO UNDER THE HEADING "SHAREHOLDERS" (EACH, A "SHAREHOLDER" AND COLLECTIVELY, THE "SHAREHOLDERS").
 
WHEREAS, the Company and certain purchasers (each, a "Purchaser", and collectively, the "Purchasers") have entered into a Securities Purchase Agreement (the "Purchase Agreement"), dated as December 30, 2014 (the "Subscription Date"), pursuant to which, among other things, the Company has agreed to issue and sell to the Purchasers, and the Purchasers have agreed to purchase, (i) senior secured convertible debentures of the Company (the "Debentures") pursuant to which the shares of the Company's common stock, par value $0.001 per share (the "Common Stock") may be issued and (ii) warrants which will be exercisable to purchase shares of Common Stock;
 
WHEREAS, as of the date hereof, and taking into account the issuance of 1,294,000 shares of Common Stock to MFP Partners, L.P. on or prior to the date hereof, the Shareholders own collectively 2,309,652 shares of Common Stock, which represent in the aggregate approximately 17.831% of the total issued and outstanding capital stock of the Company; and
 
WHEREAS, as a condition to the willingness of the Purchasers to enter into the Purchase Agreement and to consummate the transactions contemplated thereby (collectively, the "Transactions"), the Purchasers have required that each Shareholder agree, and in order to induce the Purchasers to enter into the Purchase Agreement, each Shareholder has agreed, to enter into this Agreement with respect to all the Common Stock now owned and which may hereafter be acquired by the Shareholders and any other securities, if any, which such Shareholder is currently entitled to vote, or after the date hereof, becomes entitled to vote, at any meeting of shareholders of the Company (the "Other Securities").
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
 
ARTICLE I
 
VOTING AGREEMENT OF THE SHAREHOLDERS
 
SECTION 1.01. Voting Agreement. Each Shareholder hereby agrees that at any meeting of the shareholders of the Company, however called, and in any action by written consent of the Company's shareholders, each of the Shareholders shall vote the Common Stock and the Other Securities: (a) in favor of the Shareholder Approval (as defined in the Purchase Agreement) as described in Section 4.11(c) of the Purchase Agreement; and (b) against any proposal or any other corporate action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Purchase Agreement or which could result in any of the conditions to the Company's obligations under the Purchase Agreement not being fulfilled. Each Shareholder acknowledges
 
 
 
 
 

 
receipt and review of a copy of the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement).
 
ARTICLE II
 
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
 
Each Shareholder hereby represents and warrants, severally but not jointly, to each of the Purchasers as follows:
 
SECTION 2.01. Authority Relative to This Agreement. Each Shareholder has all necessary legal capacity, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and constitutes a legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, except (a) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in effect relating to, or affecting generally the enforcement of creditors' and other obligees' rights, (b) where the remedy of specific performance or other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceeding may be brought, and (c) where rights to indemnity and contribution thereunder may be limited by applicable law and public policy.
 
SECTION 2.02. No Conflict. (a) The execution and delivery of this Agreement by such Shareholder does not, and the performance of this Agreement by such Shareholder shall not, (i) conflict with or violate any federal, state or local law, statute, ordinance, rule, regulation, order, judgment or decree applicable to such Shareholder or by which the Common Stock or the Other Securities owned by such Shareholder are bound or affected or (ii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien, charge, pledge, option, security interest, encumbrance, tax, right of first refusal, preemptive right or other restriction (each, a "Lien") on any of the Common Stock or the Other Securities owned by such Shareholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which such Shareholder is a party or by which such Shareholder or the Common Stock or Other Securities owned by such Shareholder are bound.
 
(b) The execution and delivery of this Agreement by such Shareholder does not, and the performance of this Agreement by such Shareholder shall not, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental entity by such Shareholder.
 
SECTION 2.03. Title to the Stock. As of the date hereof, each Shareholder is the owner of the number of shares of Common Stock set forth opposite its name on Appendix A attached hereto, entitled to vote, without restriction, on all matters brought before holders of capital stock of the Company, which Common Stock represents on the date hereof the percentage of the outstanding stock and voting power of the Company set forth on such Appendix. Such Common Stock represents all the securities of the Company owned, either of record or beneficially, by such Shareholder. Such Common Stock is owned free and clear of all Liens or
 
 
2

 
 
 
 
 
limitations on such Shareholder's voting rights of any nature whatsoever. No Shareholder has appointed or granted any proxy, which appointment or grant is still effective, with respect to the Common Stock or Other Securities owned by such Shareholder.
 
ARTICLE III
 
COVENANTS
 
SECTION 3.01. No Disposition or Lien of Stock. Each Shareholder hereby covenants and agrees that, until the Shareholder Approval has been obtained, except as contemplated by this Agreement, such Shareholder shall not offer or agree to sell, transfer, tender, assign, hypothecate or otherwise dispose of, grant a proxy or power of attorney with respect to, or create or permit to exist any Lien or limitation on such Shareholder's voting rights of any nature whatsoever with respect to the Common Stock or Other Securities, directly or indirectly, initiate, solicit or encourage any person to take actions which could reasonably be expected to lead to the occurrence of any of the foregoing; provided, however, that any such Shareholder may assign, sell or transfer any Common Stock or Other Securities provided that any such recipient of the Common Stock or Other Securities has delivered to the Company and each Purchaser or other holder of Securities a written agreement in a form reasonably satisfactory to the Purchasers or other holders of Securities that the recipient shall be bound by, and the Common Stock and/or Other Securities so transferred, assigned or sold shall remain subject to this Agreement. The provisions of this Section 3.01 notwithstanding, the following dispositions shall be permitted without restriction throughout the term of this Agreement: (a) dispositions under any Rule 10b5-1 stock trading plans that are in effect as of September 1, 2014, provided that such Rule 10b5-1 stock trading plans are not amended, modified or changed on or after such date, except that Fred Fabre, a Shareholder, may make a one-time amendment to his Rule 10b5-1 stock trading plan as in effect on September 1, 2014 to lengthen the term thereof so long as there is no other amendment, change or modification thereto; (b) any sales of shares of Common Stock issuable upon exercise of stock options outstanding as of the Subscription Date that expire on March 9, 2015 and June 15, 2014, provided that such stock options are not amended, modified or changed on or after the Subscription Date; and (c) any dispositions pursuant to a final decree of a divorce or upon death of the Shareholder.
 
SECTION 3.02. Company Cooperation. The Company hereby covenants and agrees that it will not, and such Shareholder irrevocably and unconditionally acknowledges and agrees that the Company will not (and waives any rights against the Company in relation thereto), recognize any Lien or agreement on any of the Common Stock or Other Securities subject to this Agreement unless the provisions of Section 3.01 have been complied with. The Company agrees to use its reasonable best efforts to ensure that at any time in which any Shareholder Approval is required pursuant to Section 4.11(c) of the Purchase Agreement, it will cause holders of Common Stock or Other Securities representing the percentage of outstanding capital stock required to vote in favor of the Transactions in order for the Company to comply with its obligations under Section 4.11(c) of the Purchase Agreement to become party to and bound by the terms and conditions of this Agreement and the Common Stock and Other Securities held by such holders to be subject to the terms and conditions of this Agreement.
 
 
3
 
 
 
 
 
 
ARTICLE IV

MISCELLANEOUS
 
SECTION 4.01. Further Assurances. Each Shareholder will execute and deliver such further documents and instruments and take all further action as may be reasonably necessary in order to consummate the transactions contemplated hereby.
 
SECTION 4.02. Specific Performance. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers or any other holder of Securities (without being joined by any other Purchaser or holder of Securities) and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained herein and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
 
SECTION 4.03. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents.
 
SECTION 4.04. Amendment. The provisions of this Agreement may not be amended or waived, nor may this Agreement be terminated by the Company other than pursuant to the provisions of Section 4.07.
 
SECTION 4.05. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
 
SECTION 4.06. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to
 
 
4
 
 
 
 
 
the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address set forth on the signature pages to this Agreement (and service so made shall be deemed complete three days after the same has been posted) and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. Any Purchaser or other holder of Securities shall be entitled to its reasonable attorneys' fees in any action brought to enforce this Agreement in which it is the prevailing party. IN ANY ACTION OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
 
SECTION 4.07. Termination. This Agreement and the obligations of the parties hereunder shall terminate immediately following the occurrence of the Shareholder Approval.
 
 
[Signature Page Follows]
 
 
5
 
 
 
 
 
 
IN WITNESS WHEREOF, each Shareholder and the Company has duly executed this Agreement.
 
   
THE COMPANY:
S&W SEED COMPANY
 
   
By:
/s/ Matt Szot
     
Name: Matt Szot
     
Title: Executive Vice President and Chief Financial Officer
Dated: December 30, 2014
      
   
Address:    
S&W Seed Company
PO Box 235
Five Points, CA 93624
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Grover T. Wickersham
   
/s/ Grover T. Wickersham
   
(Signature)
Dated: December 30, 2014
    
   
Address:    
430 Cambridge Ave., Suite 100
     
Palo Alto, CA 94306
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Michael M. Fleming
   
/s/ Michael M. Fleming
   
(Signature)
Dated: December 30, 2014
    
   
Address:    
1201 Third Ave, Suite 3400
     
Seattle, WA 98101
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Charles B. Seidler
   
/s/ Charles B. Seidler
   
(Signature)
Dated: December 30, 2014
    
   
Address:    
23 Meridian Road
     
Rowayton, CT 06853
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Mark S. Grewal
   
/s/ Mark S. Grewal
   
(Signature)
Dated: December 29, 2014
    
   
Address:    
564 Philan Circle
     
Lemoore, CA 93245
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Mark James Harvey
   
/s/ Mark James Harvey
   
(Signature)
Dated: December 29, 2014
    
   
Address:    
33 Brownhill CRK Road
     
Mitcham, South Australia 5062
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Danielson B. Gardner
   
/s/ Danielson B. Gardner
   
(Signature)
Dated: December 29, 2014
    
   
Address:    
9621 Sherman Lane
     
Wilton, CA 95693
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Fred Fabre
   
/s/ Fred Fabre
   
(Signature)
Dated: December 28, 2014
    
   
Address:    
1309 Rancho Way
     
Woodland, CA 95695
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Matthew Szot
   
/s/ Matthew Szot
   
(Signature)
Dated: December 29, 2014
    
   
Address:    
7013 Cottail Place
     
Carlsbad, CA 92011
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: William S. Smith
   
/s/ William S. Smith
   
(Signature)
Dated: December 29, 2014
    
   
Address:    
 
       
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Daniel Z. Karsten
   
/s/ Daniel Z. Karsten
   
(Signature)
Dated: December 23, 2014
    
   
Address:    
Personal –
2946 Aspen Street
Hanford, CA 93230
     
Office –
25552 S. Butte
Five Points, CA 93624
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Glen D. Bornt
   
/s/ Glen D. Bornt
   
(Signature)
Dated: December 30, 2014
    
   
Address:
  
       
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: Jury Bain Super Fund
   
/s/ Dennis Jury /s/ Deborah Anne Bain
   
(Signature)
Dated: December 30, 2014
    
   
Address:    
c/o Cleland McFarlane Selth
Level 4, 190 Flinders Street
Adelaide, South Australia, 5000
       
   
And
  
   
Dennis Charles Jury and Deborah Anne Bain as Joint Trustees for the Jury Bain Family Trust
   
/s/ Dennis Jury /s/ Deborah Anne Bain
   
(Signature)
     
   
Address:
c/o Cleland McFarlane Selth
Level 4, 190 Flinders Street
Adelaide, South Australia, 5000
       
 

 
 
 
 
 
   
SHAREHOLDERS:
 
   
Name: MFP Partners, L.P.
   
/s/ Timothy E. Ladin
   
(Signature)
Dated: December 30, 2014
  
 
Timothy E. Ladin, General Counsel
   
Address:          
667 Madison Ave, 25th Floor
     
New York, NY 10065
 

 
 
 
 
 
APPENDIX A
 
Shareholder
Common Stock
Owned
Percentage of Stock
Outstanding(1)
Voting Percentage
of Stock
Outstanding
Glen D. Bornt
180,000
1.390%
1.390%
Fred Fabre
205,000
1.583%
1.583%
Michael M. Fleming
1,000
0.008%
0.008%
Danielson B. Gardner
--
--
--
Mark S. Grewal
89,762
0.693%
0.693%
Mark J. Harvey
188,000
1.451%
1.451%
Dennis C. Jury
128,217
0.990%
0.990%
Daniel Z. Karsten
--
--
--
Charles B. Seidler
48,680
0.376%
0.376%
William S. Smith
40,000
0.309%
0.309%
Matthew K. Szot
34,553
0.267%
0.267%
Grover T. Wickersham
100,440
0.775%
0.775%
Mark Wong
--
--
--
MFP Partners, L.P.
1,294,000
9.990%
9.990%
       
Total
2,309,652
17.831%
17.831%
       
 
(1) Based on 12,952,801 shares of Common Stock outstanding, which includes the issuance of 1,294,000 shares of Common Stock to MFP Partners, L.P. on or prior to the date hereof.