8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 20, 2023

S&W SEED COMPANY

(Exact name of Registrant as Specified in Its Charter)

Nevada	001-34719	27-1275784
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)
2101 Ken Pratt Blvd, Suite 201
Longmont, Colorado		80501
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s Telephone Number, Including Area Code: (720) 506-9191

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.001 per share	SANW	The Nasdaq Capital Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry Into a Material Definitive Agreement.

On June 20, 2023, S&W Seed Company, a Nevada corporation (the “Company”), entered into a Term Loan Agreement (the “Loan Agreement”), with AgAmerica Lending LLC, a Florida limited liability company (“AgAmerica”), pursuant to which AgAmerica extended a term loan of $4,300,000 (the “Term Loan”) to the Company and, as security therefor, the Company granted to AgAmerica a mortgage on approximately 31 acres of land located in Lubbock and Moore Counties, Texas, and certain personal property thereon.

The Term Loan is evidenced by a Promissory Note (the “Note”) issued by the Company to AgAmerica, pursuant to which the Company agreed to pay AgAmerica the principal sum of $4,300,000, plus any outstanding accrued interest thereon, in full on June 20, 2026, unless otherwise accelerated in accordance with the terms of the Loan Agreement and the Note. Interest will accrue at a rate per annum equal to 4.85% plus the Term SOFR Rate (as defined in the Note), computed based on the actual number of days elapsed divided by a 360-day year. Interest payments are due quarterly in arrears, commencing on June 20, 2023, and on the last day of each quarter thereafter, unless otherwise accelerated in accordance with the terms of the Loan Agreement or the Note. AgAmerica may collect a late charge of 5.0% of any installment of principal or interest which is not paid within 10 days of the due date thereof. In addition, any delinquent principal and installments of interest not paid within 30 days of the due date thereof will bear interest beginning on the 31st day from the applicable due date at a rate equal to 5.0% per annum above the interest rate. The Company may prepay the Term Loan prior to maturity, subject to a prepayment premium equal to 1.0% of the prepaid principal amount, subject to certain exceptions.

The Loan Agreement contains certain customary representations and warranties, events of default, and affirmative and negative covenants, including (among others) limitations with respect to liens, fundamental changes, asset sales and formation and acquisition of subsidiaries, subject to certain exceptions. Upon the occurrence of an event of default, and subject to certain cure periods, AgAmerica may declare all outstanding obligations immediately due and payable and take such other actions as set forth in the Loan Agreement and the Note, as applicable, provided that in the event of bankruptcy, all such amounts shall automatically become due and payable.

The foregoing descriptions of the Loan Agreement and the Note do not purport to be complete and are qualified in their entirety by reference to the full text of the Loan Agreement and the Note, copies of which are attached hereto as Exhibits 10.1 and 10.2 and are incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information provided in Item 1.01 above is incorporated by reference into this Item 2.03.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

Prior to Mark Herrmann’s appointment as the Company’s President and Chief Executive Officer, as discussed below, Mr. Herrmann resigned from the Company’s Board of Directors (the “Board”), and each committee of the Board on which he served. Due to the vacancy resulting from Mr. Herrmann’s resignation, the Audit Committee of the Board is now comprised of two independent directors. As a result, on June 26, 2023, the Company notified The Nasdaq Stock Market LLC (“Nasdaq”) that it was not in compliance with Nasdaq Listing Rule 5605(c)(2)(A) (the “Rule”), which requires an audit committee comprised of at least three members, each of whom must satisfy the requirements for audit committee members under the Nasdaq Listing Rules and the Securities Exchange Act of 1934, as amended. The Company expects to receive a letter from Nasdaq to formally notify the Company of its non-compliance with the Rule. The Company intends to rely on the cure provision in Nasdaq Listing Rule 5605(c)(4)(B), and intends to regain compliance with the Rule prior to the expiration of the applicable cure period specified in Nasdaq Listing Rule 5605(c)(4)(B).

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On June 26, 2023, Mark Wong notified the Company of his decision to retire from his positions as an officer and/or employee of the Company and/or any of its subsidiaries, including as the Company’s President and Chief Executive Officer, effective as of July 1, 2023.

In connection with Mr. Wong’s retirement, the Board appointed Mark Herrmann as the Company’s President and Chief Executive Officer, effective July 1, 2023. Prior to his appointment, Mr. Herrmann resigned from the Board and each committee of the Board on which he served.

Since January 2021, Mr. Herrmann has served as president of Acumen Seed Executive Consulting LLC, a seed executive consulting firm. He currently serves on the Advisory Board of EarthSense, Inc., a private agricultural robotics company based in Champaign, Illinois. From January 2016 to July 2020, Mr. Herrmann served as the chief executive officer of AgReliant Genetics LLC, a private seed company based in Indianapolis, Indiana. He has been extensively involved with the American Seed Trade Association, serving as a

member of its board from 2009 to 2020, a member of its executive board from 2015 to 2020, and as Chairman from 2016 to 2017. Mr. Herrmann also served on the NCGA Advisory Council AIG from 2008 to 2010. From 1999 to 2016, Mr. Herrmann held various positions at Monsanto Company and its subsidiaries, including as Vice President North America Vegetable Seed, Vice President Technology Development and Licensing, President of Corn States LLC, Director Eastern US and Director Monsanto US Seed and Trait Business. Mr. Herrmann joined the Monsanto Company through the acquisition of DEKALB Genetics Corporation in 1998, where he began his career in the seed business in 1984 with leadership roles in sales, sales management, marketing and product management. Mr. Herrmann served as a member of the Board since December 2022 until his resignation. Mr. Herrmann holds a BS in Agronomy from Western Illinois University.

In connection with the foregoing, on June 26, 2023, the Company entered into an employment agreement with Mr. Herrmann, which has a term of one year. Pursuant to the employment agreement, Mr. Herrmann began employment with the Company effective June 26, 2023 and will serve as the Company’s President and Chief Executive Officer effective as of July 1, 2023. Mr. Herrmann will receive an annual base salary of $500,000. With respect to fiscal year 2024, and subject to Mr. Herrmann remaining continuously employed with the Company as its Chief Executive Officer through and until June 26, 2024, Mr. Herrmann will be eligible to earn a performance bonus comprised of (i) a cash bonus with an initial target bonus percentage equal to 20% (up to a maximum of 30%) of his base salary; (ii) a restricted stock unit award with an initial target value of $150,000 (up to a maximum of $300,000); and (iii) a stock option award with an initial target value of $300,000 (up to a maximum of $550,000), which will remain exercisable for 12 months after the later of (a) the date on which such stock option is granted and (b) the termination of Mr. Herrmann’s employment with the Company (parts (i) - (iii) above, the “Fiscal 2024 Bonuses”). Mr. Herrmann is also entitled to reimbursement of certain business and travel expenses (including, at the Company’s option, either Company-leased housing or reimbursement of up to $2,500 per month for housing in the Longmont, Colorado area, as well as a tax “gross-up” with respect to such reimbursement), and is eligible to participate in the Company’s employee benefit plans, policies and arrangements that are applicable to its other executive officers.

Upon the commencement of his employment, Mr. Herrmann received a one-time award of a stock option to purchase 100,000 shares of the Company’s common stock (the “Signing Option”). The shares subject to such award will vest in 12 equal monthly installments beginning on July 26, 2023, subject to Mr. Herrmann’s continuous service as of each such vesting date. If Mr. Herrmann remains continuously employed with the Company in the role of Chief Executive Officer through and until June 26, 2024, the Signing Option will remain exercisable for 12 months after the termination of his employment with the Company.

If, prior to June 26, 2024, Mr. Herrmann’s employment is terminated without cause or he resigns for good reason (each as defined in the employment agreement), he will be entitled to receive (i) continuation of his base salary for three months and (ii) full acceleration of vesting under the Signing Option, and the Signing Option will remain exercisable for up to 12 months following termination, subject to a requirement that Mr. Herrmann provide the Company with a general release of claims in a separation agreement acceptable to the Company. In addition, if Mr. Herrmann’s employment is terminated by him or the Company for any reason on or after June 26, 2024, Mr. Herrmann will remain eligible for the Fiscal 2024 Bonuses described above.

The Company previously entered into its standard form of indemnification agreement with Mr. Herrmann in connection with his appointment to the Board in December 2022.

There are no family relationships between Mr. Herrmann and any of the Company’s current or former directors or executive officers. Mr. Herrmann is not a party to any transaction that would require disclosure under Item 404(a) of Regulation S-K promulgated under the Securities Act of 1933, as amended.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On June 20, 2023, the Board adopted the Third Amended and Restated Bylaws of the Company, which amended and restated the Company’s Second Amended and Restated Bylaws, as amended, in order to effect, among other things, the following changes:

•require that any request for a special meeting of stockholders set forth the specific business proposed to be transacted, where previously only the general nature of such business was required to be described;

•clarify that the holders of a majority of the shares of stock entitled to vote at a stockholder meeting, present in person or represented by proxy (regardless of whether the proxy has authority to vote on any matter), shall constitute a quorum for the transaction of business;

•remove the reference to a fixed number of directors; and

•various administrative, modernizing and clarifying changes contemplated by the Nevada Revised Statutes.

The foregoing description of the Third Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amended and Restated Bylaws, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit	Description
3.1	Third Amended and Restated Bylaws.
10.1	Term Loan Agreement, by and between the Company and AgAmerica, dated June 20, 2023.
10.2	Promissory Note, dated June 20, 2023, issued by the Company to AgAmerica.
104	The cover page from this Current Report on Form 8-K, formatted in Inline XBRL.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

			S&W SEED COMPANY
Date:	June 26, 2023	By:	/s/ Mark W. Wong
			Mark W. Wong President and Chief Executive Officer

EX-3.1

Exhibit 3.1

THIRD AMENDED AND RESTATED

BYLAWS OF

S&W SEED COMPANY

(a Nevada corporation)

As Adopted June 20, 2023

284539793 v3

Table of Contents

Page

Article I OFFICES	1
Section 1.1 Principal and Other Offices	1
Article II STOCKHOLDERS	1
Section 2.1 Annual Meetings	1
Section 2.2 Special Meetings	1
Section 2.3 Advance Notice of Stockholder Business and Nominations	1
Section 2.4 Notice of Meetings	4
Section 2.5 Manner of Giving Notice; Electronic Notice; Affidavit of Mailing.	4
Section 2.6 Adjournments	5
Section 2.7 Quorum	5
Section 2.8 Conduct of Meetings	5
Section 2.9 Voting.	6
Section 2.10 Proxies	6
Section 2.11 Fixing Date for Determination of Stockholders of Record	6
Section 2.12 List of Stockholders Entitled to Vote	6
Section 2.13 Participation by Telephonic or Other Electronic Communication	7
Section 2.14 Waiver of Notice or Consent by Absent Stockholders.	7
Section 2.15 Action by Written Consent of Stockholders	7
Section 2.16 Inspectors of Elections.	7
Article III BOARD OF DIRECTORS	8
Section 3.1 Number; Qualifications	8
Section 3.2 Election; Resignation; Removal; Vacancies.	8
Section 3.3 Election of Chairman of the Board	9
Section 3.4 Regular Meetings	9
Section 3.5 Special Meetings.	9
Section 3.6 Remote Meetings Permitted	9
Section 3.7 Quorum; Vote Required for Action.	10
Section 3.8 Place and Conduct of Meetings	10
Section 3.9 Adjournment	10
Section 3.10 Notice of Adjournment	10
Section 3.11 Written Action by Directors	10
Section 3.12 Waiver of Notice	10
Section 3.13 Powers	10
Section 3.14 Fees and Compensation of Directors	10
Article IV COMMITTEES	11

i

284539793 v3

Table of Contents

(continued)

Page

Section 4.1 Committees.	11
Section 4.2 Committee Rules	11
Article V OFFICERS	11
Section 5.1 Designation, Election and Term of Office	11
Section 5.2 Chief Executive Officer	12
Section 5.3 Chairperson of the Board	12
Section 5.4 President	12
Section 5.5 Vice President	12
Section 5.6 Chief Financial Officer	13
Section 5.7 Treasurer	13
Section 5.8 Secretary	13
Section 5.9 Assistant Officers	13
Section 5.10 Officers Holding Two or More Offices	13
Section 5.11 Delegation of Authority	13
Section 5.12 Removal	13
Article VI STOCK	13
Section 6.1 Certificates.	13
Section 6.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates	14
Section 6.3 Registered Stockholders	14
Section 6.4 Other Regulations	14
Article VII INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER CORPORATE AGENTS	14
Section 7.1 Actions Other Than By or In the Right of the Corporation	14
Section 7.2 Actions By or in the Right of the Corporation	14
Section 7.3 Determination of Right of Indemnification	15
Section 7.4 Indemnification Against Expenses of Successful Party	15
Section 7.5 Advances of Expenses	15
Section 7.6 Right of Agent to Indemnification upon Application; Procedure Upon Application	15
Section 7.7 Other Rights and Remedies	15
Section 7.8 Indemnification Contracts	15
Section 7.9 Insurance	15
Section 7.10 Constituent Corporations	16
Section 7.11 Other Enterprises, Fines and Service at the Corporation’s Request	16
Section 7.12 Savings Clause	16
Section 7.13 Effect of Amendment	16

ii

284539793 v3

Table of Contents

(continued)

Page

Section 7.14 Retroactive Effect	16
Article VIII RECORDS AND BOOKS	16
Section 8.1 Maintenance of Share Register	16
Section 8.2 Maintenance of Bylaws	16
Section 8.3 Maintenance of Other Corporate Records	16
Section 8.4 Form of Records	17
Section 8.5 Directors’ Inspection Right; Reliance Upon Books and Records.	17
Article IX INTERESTED DIRECTORS	17
Section 9.1 Interested Directors.	17
Article X GENERAL CORPORATE MATTERS	18
Section 10.1 Notice.	18
Section 10.2 Record Date	18
Section 10.3 Closing of Transfer Books	19
Section 10.4 Checks, Drafts, Evidences of Indebtedness	19
Section 10.5 Corporate Contracts and Instruments; How Executed	19
Section 10.6 Dividends and Other Distributions	19
Section 10.7 Fiscal Year	19
Section 10.8 Seal	19
Section 10.9 Representation of Shares of Other Corporations	19
Section 10.10 Articles of Incorporation Governs	20
Section 10.11 Construction and Definitions	20
Section 10.12 Severability	20
Section 10.13 Application of NRS 78.378-78.3793	20
Article XI AMENDMENT	20
Section 11.1 Amendment of Bylaws.	20

iii

284539793 v3

THIRD AMENDED AND RESTATED

BYLAWS OF

S&W SEED COMPANY

(a Nevada corporation)

As Adopted June 20, 2023

Article I
OFFICES

Section 1.1 Principal and Other Offices. The principle office shall be in such location, either within or without the State of Nevada, as the board of directors shall determine. The board of directors may at any time establish branch or subordinate offices at any place or places, either within or without the State of Nevada, where the corporation is qualified to do business.

Article II
STOCKHOLDERS

Section 2.1 Annual Meetings. Unless directors are elected by written consent in lieu of an annual meeting as permitted by Section 78.320 of the Nevada Revised Statutes (“NRS”), or any successor statute, an annual meeting of stockholders shall be held for the election of directors at such date and time as the Board of Directors shall each year fix. The meeting may be held either at a place, within or without the State of Nevada, or by means of remote communication (as contemplated by NRS 78.320) as the Board of Directors in its sole discretion may determine. Any other proper business may be transacted at the annual meeting.

Section 2.2 Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the entire Board of Directors, any two directors or the President. Special meetings may not be called by any other person or persons. Each special meeting shall be held at such date and time as is requested by the person or persons calling the meeting within the limits fixed by law.

The request shall be in writing, specifying the time of such meeting, the place where it is to be held and the specific business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president, any vice president or the secretary of the corporation. The officer receiving such request forthwith shall cause notice to be given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 2.2 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the board of directors may be held.

Section 2.3 Advance Notice of Stockholder Business and Nominations

(a) With respect to annual meetings of stockholders:

(i) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (b) by or at the direction of the Board of Directors, or (c) by any stockholder of the Corporation who is a stockholder of record of the Corporation at the time the notice provided for in this Section 2.3 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting, and who complies with the notice procedures set forth in this Section 2.3.

(ii) For nominations or other business to be properly brought before an annual meeting of stockholders by a stockholder, the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation and any such proposed business must constitute a proper matter for stockholder action

284539793 v3

under the NRS. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty days before or more than sixty (60) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no event shall the public announcement of an adjournment or postponement of an annual meeting of stockholders commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. To be in proper written form, a stockholder’s notice to the Secretary (whether pursuant to this Section 2.3(a)(ii) or Section 2.3(b)) must set forth:

(A) as to each person, if any, whom the stockholder proposes to nominate for election as a director (x) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act and (y) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected;

(B) if the notice relates to any business (other than the nomination of persons for election as directors) that the stockholder proposes to bring before the meeting, (w) a brief description of the business desired to be brought before the meeting, (x) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), (y) the reasons for conducting such business at the meeting, and (z) any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and

(C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (w) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (x) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned beneficially and of record by such stockholder and by such beneficial owner, (y) any derivative positions with respect to shares of capital stock of the Corporation held or beneficially held by or on behalf of such stockholder and by or on behalf of such beneficial owner, the extent to which any hedging or other transaction or series of transactions has been entered into with respect to the shares of capital stock of the Corporation by or on behalf of such stockholder and by or on behalf of such beneficial owner, and the extent to which any other agreement, arrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of such stockholder and such beneficial owner with respect to shares of capital stock of the Corporation, (z) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, and (aa) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group that intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee or otherwise to solicit proxies from stockholders in support of such proposal or nomination.

The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine (x) the eligibility of such proposed nominee to serve as a director of the Corporation, and (y) whether such nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly-disclosed corporate governance guideline or committee charter of the Corporation.

(iii) Notwithstanding anything in the second sentence of paragraph (a)(ii) of this Section 2.3 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section

2

284539793 v3

2.3 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.

(b) With respect to special meetings of stockholders: Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors or any duly authorized committee thereof or (2) provided that the Board of Directors or any duly authorized committee thereof has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.3 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election, and who complies with the notice procedures set forth in this Section 2.3. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice in the same form as required by paragraph (a)(ii) of this Section 2.3 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(c) With respect to other matters related to advance notice of stockholder business and nominations:

(i) Only persons who are nominated in accordance with the procedures set forth in this Section 2.3 shall be eligible to be elected at an annual or special meeting of stockholders of the

Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.3. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.3 and (B) if any proposed nomination or business was not made or proposed in compliance with this Section 2.3, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.3, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be considered, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.3, to be considered a qualified representative of the stockholder, a person must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

(ii) For purposes of this Section 2.3, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press, or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.

(iii) Nothing in this Section 2.3 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor thereto) promulgated under the Exchange Act (and any proposal included in the Corporation’s proxy

3

284539793 v3

statement pursuant to such Rule shall not be subject to any of the advance notice requirements in this Section 2.3) or (b) of the holders of any series of Preferred Stock to nominate and elect directors pursuant to and to the extent provided in any applicable provisions of the certificate of incorporation.

Section 2.4 Notice of Meetings. All notices of meetings of stockholders shall be sent or otherwise given in accordance with Section 2.5 of this Article II not less than ten (10) nor more than sixty (60) days before the date of the meeting being noticed. The notice shall specify the physical location (if any), date and time of the meeting and (i) in the case of a special meeting the general nature of the business to be transacted, or (ii) in the case of the annual meeting those matters that the board of directors, at the time of giving the notice, intends to present for action by the stockholders. The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees which, at the time of the notice, management intends to present for election. The Corporation may, but is not required to, give a separate written notice of a meeting of stockholders if the requirements for notice are otherwise satisfied in accordance with NRS 78.370(9).

If action is proposed to be taken at any meeting for approval of (i) contracts or transactions in which a director has a direct or indirect financial interest, (ii) an amendment to the articles of incorporation, (iii) a reorganization of the corporation, (iv) dissolution of the corporation, or (v) a distribution to preferred stockholders, the notice shall also state the general nature of such proposal.

Section 2.5 Manner of Giving Notice; Electronic Notice; Affidavit of Mailing.

(a) Except as otherwise provided in this Section 2.5 or permitted by NRS 78.370(9), notice of any meeting of stockholders shall be given either personally or by first-class mail or facsimile or other written communication, charges prepaid, addressed to the stockholder at the address of such stockholder appearing on the books of the corporation or given by the stockholder to the corporation for the purpose of notice. If no such address appears on the corporation’s books or is given, notice shall be deemed to have been given if sent by mail or telegram to the corporation’s principal executive office, or if published at least once in a newspaper of general circulation in the county where this office is located. Personal delivery of any such notice to any officer of a corporation or association or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting, it shall not be necessary to deliver or mail notice of the meeting to the transferee.

(b) If any notice addressed to a stockholder at the address of such stockholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the stockholder at such address, all future notices or reports shall be deemed to have been duly given without further mailing if the same shall be available to the stockholder upon written demand of the stockholder at the principal executive office of the corporation for a period of one year from the date of the giving of such notice.

(c) Any notice to stockholders given by the Corporation pursuant to any provision of the NRS, the Articles of Incorporation or these Bylaws is effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. The consent is revocable by the stockholder by written notice to the corporation. The consent is revoked if:

(i) The corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with the consent; and

(ii) The inability to deliver by electronic transmission becomes known to the secretary, assistant secretary, transfer agent or other agent of the corporation responsible for the giving of notice. However, the inadvertent failure to treat the inability to deliver a notice by electronic transmission as a revocation does not invalidate any meeting or other action.

4

284539793 v3

Electronic notice pursuant to subsection (c) of this Section 2.5 shall be deemed given if:

(A) by facsimile machine, when directed to a number at which the stockholder has consented to receive notice;

(B) by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; or

(C) by a posting on an electronic network together with separate notice to the stockholder of the specific posting,

upon the later of: (i) such posting; (ii) the giving of the separate notice; and (iii) by any other form of electronic transmission, when directed to the stockholder.

(d) An affidavit of the mailing or other means of giving any notice of any stockholders’ meeting shall be executed by the secretary, assistant secretary or any transfer agent of the corporation giving such notice, and shall be filed and maintained in the minute book of the corporation.

Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 2.6 Adjournments. Any stockholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at such meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at such meeting.

When any meeting of stockholders, either annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at a meeting at which the adjournment is taken. At any adjourned meeting the corporation may transact any business which might have been transacted at the original meeting.

Section 2.7 Quorum. At each meeting of stockholders the holders of a majority of the shares of stock entitled to vote at the meeting, present in person or represented by proxy (regardless of whether the proxy has authority to vote on any matter), shall constitute a quorum for the transaction of business, unless otherwise required by applicable law. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.

If a quorum shall fail to attend any meeting, the chairperson of the meeting or the holders of a majority of the shares entitled to vote who are present, in person or by proxy, at the meeting may adjourn the meeting. Shares of the Corporation’s stock belonging to the Corporation (or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation are held, directly or indirectly, by the Corporation), shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any other corporation to vote any shares of the Corporation’s stock held by it in a fiduciary capacity and to count such shares for purposes of determining a quorum.

Section 2.8 Conduct of Meetings. Meetings of stockholders shall be presided over by such person as the Board of Directors may designate, or, in the absence of such a person, the Chairperson of the Board of Directors, or, in the absence of such person, the President of the Corporation, or, in the absence of such person, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, at the meeting. Such person shall be chairperson of the meeting and, subject to Section 2.16 hereof, shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to him or her to be in order. The Secretary of the Corporation shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

5

284539793 v3

Section 2.9 Voting.

(a) Unless a record date set for voting purposes be fixed as provided in Section 2.11 of these bylaws, only persons in whose names shares entitled to vote stand on the stock records of the corporation at the close of business on the business day next preceding the day on which notice is given (or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held) shall be entitled to vote at such meeting. Any stockholder entitled to vote on any matter other than elections of directors or officers, may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but, if the stockholder fails to specify the number of shares such stockholder is voting affirmatively, it will be conclusively presumed that the stockholder’s approving vote is with respect to all shares such stockholder is entitled to vote. Such vote may be by voice vote or by ballot; provided, however, that all elections for directors must be by ballot upon demand by a stockholder at any election and before the voting begins.

(b) When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of applicable law, the Articles of Incorporation or these Bylaws a different vote is required in which case such express provision shall govern and control the decision of such question. Every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. Stockholders are not permitted to cumulate votes in the election of directors unless required by law and then only in accordance with the required procedures applicable thereto.

(c) If a vote is to be taken by written ballot, then each such ballot shall state the name of the stockholder or proxy voting and such other information as the chairperson of the meeting deems appropriate and, if authorized by the Board of Directors, the ballot may be submitted by electronic transmission in the manner provided by law.

Section 2.10 Proxies. Every person entitled to vote for directors or on any other matter shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the secretary of the corporation. A proxy shall be deemed signed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney in fact. A validly executed proxy which does not state that it is irrevocable shall continue in full force and effect unless revoked by the person executing it, prior to the vote pursuant thereto, by a writing delivered to the corporation stating that the proxy is revoked or by a subsequent proxy executed by, or attendance at the meeting and voting in person by the person executing the proxy; provided, however, that no such proxy shall be valid after the expiration of six (6) months from the date of such proxy, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven (7) years from the date of its execution. Subject to the above and the provisions of Section 78.355 of the NRS, or any successor statute, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation.

Section 2.11 Fixing Date for Determination of Stockholders of Record. The guidelines for fixing the record date for determination of stockholders entitled to notice of meetings and to vote at such meetings, and for other purposes incident to their role as stockholders of the Corporation are set forth in Section 10.2 of these Bylaws.

Section 2.12 List of Stockholders Entitled to Vote. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either on a reasonably accessible electronic network as permitted by law (provided that the information required to gain access to the list is provided with the notice of the meeting) or during ordinary business hours at the principal place of business of the Corporation. If the meeting is held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present at the meeting. If the meeting is held solely by means of remote communication, then the list shall be open to

6

284539793 v3

the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access the list shall be provided with the notice of the meeting.

Section 2.13 Participation by Telephonic or Other Electronic Communication. Unless otherwise restricted by the articles of incorporation or bylaws, stockholders may participate in a meeting of stockholders by means of a telephone conference or similar methods of communication by which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this subsection constitutes presence in person at the meeting.

Section 2.14 Waiver of Notice or Consent by Absent Stockholders.

(a) The transactions at any meeting of stockholders, either annual or special, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, not present in person or by proxy, signs a written waiver of notice or a consent to a holding of the meeting, or an approval of the minutes thereof. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any regular or special meeting of stockholders, except that if action is taken or proposed to be taken for approval of any of those matters specified in the second paragraph of Section 2.4 of this Article II, the waiver of notice or consent shall state the general nature of such proposal. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.

(b) Attendance of a person at a meeting shall also constitute a waiver of notice of such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice if such objection is expressly made at the meeting.

Section 2.15 Action by Written Consent of Stockholders. Unless otherwise provided in the Corporation’s Articles of Incorporation, no action shall be taken by the stockholders of the corporation except at a duly called annual or special meeting of stockholders and no action shall be taken by the stockholders of the corporation by written consent.

Section 2.16 Inspectors of Elections.

(a) Unless otherwise provided in the Corporation’s Articles of Incorporation or required by the NRS, the following provisions of this Section 2.16 shall apply only if and when the Corporation has a class of voting stock that is: (i) listed on a national securities exchange; (ii) authorized for quotation on an automated interdealer quotation system of a registered national securities association; or (iii) held of record by more than two thousand (2,000) stockholders; in all other cases, observance of the provisions of this Section 2.16 shall be optional, and at the discretion of the Board of Directors of the Corporation.

(b) The Corporation shall, in advance of any meeting of stockholders, appoint one (1) or three (3) inspectors of election to act at the meeting and make a written report thereof. If there are three (3) Inspectors of Election, the decision, act or certificate of a majority shall be effective and shall represent the decision, act or certificate of all. No such Inspector need be a stockholder of the Corporation. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.

(c) Each inspector of election, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.

(d) Subject to any provisions of the Articles of Incorporation, the Inspectors of Election shall determine the number of shares outstanding, the voting power of each, the shares represented at the meeting, the existence of a quorum and the authenticity, validity and effect of proxies; they shall receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and

7

284539793 v3

tabulate all votes or consents, determine when the polls shall close and determine the result; and finally, they shall do such acts as may be proper to conduct the election or vote with fairness to all stockholders. On request, the Inspectors shall make a report in writing to the secretary of the meeting concerning any challenge, question or other matter as may have been determined by them and shall execute and deliver to such secretary a certificate of any fact found by them.

(e) The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced by the inspectors at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls unless a court of competent jurisdiction, upon application by a stockholder, shall determine otherwise.

(f) In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in connection with proxies in accordance with Section 78.355 of the NRS, ballots and the regular books and records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification of their determinations pursuant to this Section 2.16 shall specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.

Article III
BOARD OF DIRECTORS

Section 3.1 Number; Qualifications. The number of directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than three (3) or more than ten (10). No decrease in the authorized number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Directors need not be stockholders of the Corporation.

Section 3.2 Election; Resignation; Removal; Vacancies.

(a) Each director shall serve until his successor is elected and qualified or until his death, resignation or removal. Additional directors elected in connection with rights to elect such additional directors under specified circumstances that may be granted to the holders of any series of Preferred Stock shall not be included in any class, but shall serve for such term or terms and pursuant to such other provisions as are specified in the resolution of the Board of Directors establishing such series. Any director may resign at any time upon notice to the Corporation given in writing or by electronic transmission.

(b) Directors shall be at least 21 years of age. Directors need not be stockholders. Except as otherwise provided by these Bylaws, each director shall be elected by the affirmative vote of a majority of the votes cast with respect to that director’s election at any meeting for the election of directors at which a quorum is present, provided that if, as of the tenth (10th) day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders of the Corporation, the number of nominees exceeds the number of directors to be elected (a “Contested Election”), the directors shall be elected by the vote of a plurality of the votes cast. For purposes of this Section 3.2 of these Bylaws, a majority of votes cast shall mean that the number of votes cast “for” a director’s election exceeds the number of votes cast “against” that director’s election (with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” that director’s election).

In order for any incumbent director to become a nominee of the Board for further service on the Board, such person must submit an irrevocable resignation, contingent on (i) that person not receiving a majority of the votes cast in an election that is not a Contested Election, and (ii) acceptance of that proffered resignation by the Board in accordance with the policies and procedures adopted by the Board for such purpose. In the event an incumbent director fails to receive a majority of the votes cast in an election that is not a Contested Election, the Nominating and Corporate

8

284539793 v3

Governance Committee of the Board, or such other committee designated by the Board pursuant to these Bylaws, shall make a recommendation to the Board as to whether to accept or reject the resignation of such incumbent director, or whether other action should be taken. The Board shall act on the proffered resignation, taking into account the applicable committee’s recommendation, and publicly disclose (by a press release and filing an appropriate disclosure with the Securities and Exchange Commission) its decision regarding the resignation and, if such resignation is rejected, the rationale behind the decision within ninety (90) days following certification of the election results. The committee in making its recommendation and the Board in making its decision each may consider any factors and other information that they consider appropriate and relevant.

If the Board accepts a director’s resignation pursuant to this Section 3.2, or if a nominee for director is not elected and the nominee is not an incumbent director, then the Board of may fill the resulting vacancy pursuant to Article III, Section 3.2(c) of the Bylaws.

(c) Newly created directorships resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until such director’s successor shall have been elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

Section 3.3 Election of Chairman of the Board. At the organizational meeting promptly following the annual meeting of stockholders, the directors may elect a Chairman of the Board from among the directors who shall hold office until the corresponding meeting of the Board of Directors in the next year and until his successor shall have been elected or until his earlier resignation or removal. Any vacancy in such office may be filled for the unexpired portion of the term in the same manner by the Board of Directors at any regular or special meeting.

Section 3.4 Regular Meetings. Regular meetings of the Board of Directors shall be held promptly following the annual meeting of the stockholders; without call at such time as shall from time to time be fixed by the Board of Directors; and as called by the Chairman of the Board in accordance with applicable law. Other regular meetings of the Board of Directors shall be held without call at such time as shall from time to time be fixed by the Board of Directors. Such regular meetings may be held without notice, provided the notice of any change in the time of any such meetings shall be given to all of the directors. Notice of a change in the determination of the time shall be given to each director in the same manner as notice for special meetings of the board of directors.

Section 3.5 Special Meetings.

(a) Special meetings of the Board of Directors shall be held upon call by or at the direction of the Chairman of the Board, the President or any two (2) directors, except that when the Board of Directors consists of one (1) director, then the one director may call a special meeting. Except as otherwise required by law, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, at least three (3) days before the day on which the meeting is to be held, or shall be sent to him at such place by telex, telegram, cable, e-mail, facsimile transmission, other means of electronic transmission or telephoned or delivered to him personally, not later than twenty-four (24) hours before the date and time at which the meeting is to be held. Such notice shall state the time and place of such meeting, but need not state the purpose or purposes thereof, unless otherwise required by law, the Articles or these Bylaws.

(b) Notice of any meeting need not be given to any director who shall attend such meeting in person (except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened) or who shall waive notice thereof, before or after such meeting, in a signed writing.

Section 3.6 Remote Meetings Permitted. Members of the Board of Directors, or any committee of the Board, may participate in a meeting of the Board of Directors or such committee by means of remote communication (as contemplated by NRS 78.320), and participation in a meeting by such means of remote communication shall constitute presence in person at such meeting.

9

284539793 v3

Section 3.7 Quorum; Vote Required for Action.

(a) At all meetings of the Board of Directors a majority of the fixed number of directors shall constitute a quorum for the transaction of business. In the absence of a quorum, the directors present, by majority vote and without notice other than by announcement, may adjourn the meeting from time to time until a quorum shall be present. At any reconvened meeting following such an adjournment at which a quorum shall be present, any business may be transacted that might have been transacted at the meeting as originally notified.

(b) Except as otherwise provided herein or in the Articles of Incorporation, or required by law, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

Section 3.8 Place and Conduct of Meetings. Each regular meeting and special meeting of the Board of Directors shall be held at a location determined as follows: The Board of Directors may designate any place, within or without the State of Nevada, for the holding of any meeting. If no such designation is made: (a) any meeting called by a majority of the directors shall be held at such physical location (if any), within the county of the Corporation’s principal executive office, as the directors calling the meeting shall designate; and (b) any other meeting shall be held at such physical location (if any), within the county of the Corporation’s principal executive office, as the Chairman of the Board may designate or, in the absence of such designation, at the Corporation’s principal executive office. Subject to the requirements of applicable law, all regular and special meetings of the Board of Directors shall be conducted in accordance with such rules and procedures as the Board of Directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board of Directors, or in such person’s absence by the President, or in such person’s absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 3.9 Adjournment. A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.

Section 3.10 Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned for more than twenty-four (24) hours, in which case notice of such time and place shall be given prior to the time of the adjourned meeting, in the manner specified in Section 3.6 of this Article III, to the directors who were not present at the time of the adjournment.

Section 3.11 Written Action by Directors. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee, respectively. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 3.12 Waiver of Notice. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice if a quorum be present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting or an approval of the minutes thereof. The waiver of notice of consent need not specify the purpose of the meeting. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed given to any director who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director.

Section 3.13 Powers. The Board of Directors may, except as otherwise required by law or the Articles of Incorporation, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.

Section 3.14 Fees and Compensation of Directors. Directors shall be paid such compensation as may be fixed from time to time by resolution of the Board of Directors: (i) for their usual and contemplated services as

10

284539793 v3

directors; (ii) for their services as members of committees appointed by the Board of Directors, including attendance at committee meetings as well as services which may be required when committee members must consult with management staff; and (iii) for extraordinary services as directors or as members of committees appointed by the Board of Directors, over and above those services for which compensation is fixed pursuant to items (i) and (ii) in this Section 3.15. Compensation may be in the form of an annual retainer fee or a fee for attendance at meetings, or both, or in such other form or on such basis as the resolutions of the Board of Directors shall fix. Directors shall be reimbursed for all reasonable expenses incurred by them in attending meetings of the Board of Directors and committees appointed by the Board of Directors and in performing compensable extraordinary services. Nothing contained herein shall be construed to preclude any director from serving the Corporation in any other capacity, such as an officer, agent, employee, consultant or otherwise, and receiving compensation therefor.

Article IV
COMMITTEES

Section 4.1 Committees.

(a) To the full extent permitted by applicable law, the Board of Directors may from time to time establish committees, including, but not limited to, standing or special committees and an executive committee with authority and responsibility for bookkeeping, with authority to act as signatories on Corporation bank or similar accounts and with authority to choose attorneys for the Corporation and direct litigation strategy, which shall have such duties and powers as are authorized by these Bylaws or by the Board of Directors.

(b) Committee members and the chairman of each committee, shall be appointed by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of a committee to replace any member who is disqualified or absent from a meeting of the committee. Unless the Board of Directors appoints alternate members pursuant to this subsection 4.1(b), the member or members of a committee present at a meeting and not disqualified from voting, whether or not the member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of an absent or disqualified member of the committee. Members of standing committees, and their chairmen, shall be elected yearly at the regular meeting of the Board of Directors that is held immediately following the annual meeting of stockholders.

(c) Any member of any committee may be removed at any time with or without cause by the Board of Directors.

(d) Vacancies that occur on any committee shall be filled by a resolution of the Board of Directors. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, so long as a quorum is present, may continue to act until such vacancy is filled by the Board of Directors.

(e) The Board of Directors may, by resolution, at any time deemed desirable, discontinue any standing or special committee, provided, however, that so long as the Corporation’s securities are listed on a national stock exchange or quoted on a national quotation service that require specified standing committees to maintain listed or quoted, as the case may be, such standing committees shall not be discontinued.

Section 4.2 Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article III of these Bylaws.

Article V
OFFICERS

Section 5.1 Designation, Election and Term of Office. The Corporation shall have a President, Treasurer (or the equivalent thereof), such senior or executive vice presidents and vice presidents as the Board of Directors deems appropriate, a Secretary and such other officers as the Board of Directors may deem appropriate. These officers

11

284539793 v3

shall be elected annually by the Board of Directors at a meeting immediately following the annual meeting of stockholders, and each such officer shall hold office until the corresponding meeting of the Board of Directors in the next year and until his successor shall have been elected and qualified or until his earlier resignation, death or removal. Any officer may resign at any time by giving written notice to the Board of Directors, to the President, or to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein unless otherwise determined by the Board of Directors. The acceptance of a resignation by the Corporation shall not be necessary to make it effective. Any assistant officer of the Corporation may be removed, with or without cause, by the Chief Executive Officer or by the Board of Directors Any vacancy in any of the above offices may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

Section 5.2 Chief Executive Officer. Subject to the control of the Board of Directors and such supervisory powers, if any, as may be given by the Board of Directors, the powers and duties of the Chief Executive Officer of the Corporation are:

(a) to act as the general manager and, subject to the control of the Board of Directors, to have general supervision, direction and control of the business and affairs of the Corporation;

(b) to preside at all meetings of the stockholders;

(c) to call meetings of the stockholders to be held at such times and, subject to the limitations prescribed by law or by these Bylaws, at such places as he or she shall deem proper; and

(d) to affix the signature of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers and instruments in writing which have been authorized by the Board of Directors or which, in the judgment of the Chief Executive Officer, should be executed on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the Board of Directors, to have general charge of the property of the Corporation and to supervise and control all officers, agents and employees of the Corporation.

The President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall designate another officer to be the Chief Executive Officer. If there is no President, and the Board of Directors has not designated any other officer to be the Chief Executive Officer, then the Chairperson of the Board of Directors shall be the Chief Executive Officer.

Section 5.3 Chairperson of the Board. The Chairperson of the Board of Directors shall have the power to preside at all meetings of the Board of Directors and shall have such other powers and duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe.

Section 5.4 President. The President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall have designated another officer as the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer other than the President), and subject to such supervisory powers and authority as may be given by the Board of Directors to the Chairperson of the Board of Directors, and/or to any other officer, the President shall have the responsibility for the general management the control of the business and affairs of the Corporation and the general supervision and direction of all of the officers, employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that are delegated to the President by the Board of Directors.

Section 5.5 Vice President. Each Vice President shall have all such powers and duties as are commonly incident to the office of Vice President, or that are delegated to him or her by the Board of Directors or the Chief Executive Officer. A Vice President may be designated by the Board of Directors to perform the duties and exercise the powers of the Chief Executive Officer in the event of the Chief Executive Officer’s absence or disability.

12

284539793 v3

Section 5.6 Chief Financial Officer. The Chief Financial Officer shall be the Treasurer of the Corporation unless the Board of Directors shall have designated another officer as the Treasurer of the Corporation. Subject to the direction of the Board of Directors and the Chief Executive Officer, the Chief Financial Officer shall perform all duties and have all powers that are commonly incident to the office of Chief Financial Officer.

Section 5.7 Treasurer. The Treasurer shall have custody of all monies and securities of the Corporation. The Treasurer shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions. The Treasurer shall also perform such other duties and have such other powers as are commonly incident to the office of Treasurer, or as the Board of Directors or the Chief Executive Officer may from time to time prescribe.

Section 5.8 Secretary. The Secretary shall issue or cause to be issued all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board of Directors. The Secretary shall have charge of the corporate minute books and similar records and shall perform such other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board of Directors or the Chief Executive Officer may from time to time prescribe.

Section 5.9 Assistant Officers. The Chief Executive Officer may appoint one or more assistant secretaries and such other assistant officers as the business of the Corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as may be specified from time to time by the President.

Section 5.10 Officers Holding Two or More Offices. The same person may hold any two (2) or more of the above- mentioned offices.

Section 5.11 Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.

Section 5.12 Removal. Any officer of the Corporation shall serve at the pleasure of the Board of Directors and may be removed at any time, with or without cause, by the Board of Directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.

Article VI
STOCK

Section 6.1 Certificates.

(a) Except as otherwise provided by law, each stockholder shall be entitled to a certificate or certificates which shall represent and certify the number and class (and series, if appropriate) of shares of stock owned by him in the Corporation. Each certificate shall be signed in the name of the Corporation by the Chairman of the Board or a Vice-Chairman of the Board or the President or a Vice President, together with the Treasurer, Chief Financial Officer or an Assistant Treasurer, or the Secretary or an Assistant Secretary. Any or all of the signatures on any certificate may be a facsimile. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relatives, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions of such rights, and, if the corporation shall be authorized to issue only special stock, such certificate must set forth in full or summarize the rights of the holders of such stock. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

(b) Each share of stock shall be eligible for record of ownership, and transfer of ownership, by book-entry under a Direct Registration System that complies with NASDAQ rules; while entitled to a certificate, a stockholder shall not be required to have a certificate.

13

284539793 v3

Section 6.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. No new certificate for shares shall be issued in place of any certificate theretofore issued unless the latter is surrendered and cancelled at the same time; provided, however, that a new certificate may be issued without the surrender and cancellation of the old certificate if the certificate thereto fore issued is alleged to have been lost, stolen or destroyed. In case of any such allegedly lost, stolen or destroyed certificate, the Corporation may require the owner thereof or the legal representative of such owner to give the Corporation a bond (or other adequate security) sufficient to indemnify it against any claim that may be made against it (including any expense or liability) on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 6.3 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Nevada.

Section 6.4 Other Regulations. The issue, transfer, conversion and registration of stock certificates shall be governed by such other regulations as the Board of Directors may establish.

Article VII
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER CORPORATE AGENTS

Section 7.1 Actions Other Than By or In the Right of the Corporation. The Corporation shall indemnify and hold harmless to the fullest extent permitted by the NRS any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) (other than an action by or in the right of the Corporation) by reason of the fact that such person (or a person of whom such person is the legal representative) is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise, including as a manager of a limited liability company (all such persons being referred to hereinafter as an “Agent”), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. Such indemnification shall continue as to a person who has ceased to be an Agent and shall inure to the benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing, the Corporation shall indemnify any such person seeking indemnity in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation, or if such indemnification is authorized by an agreement approved by the Board of Directors.

Section 7.2 Actions By or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was an Agent against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation by a court of competent jurisdiction, after exhaustion of all appeals therefrom, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

14

284539793 v3

Section 7.3 Determination of Right of Indemnification. Any indemnification under Sections 7.1 or 7.2 of this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Agent is proper in the circumstances because the Agent has met the applicable standard of conduct set forth in Sections 7.1 and 7.2 hereof, which determination is made (a) by the Board of Directors, by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders.

Section 7.4 Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article VII, to the extent that an Agent has been successful on the merits or otherwise, including the dismissal of an action without prejudice or the settlement of an action without admission of liability, in defense of any action, suit or proceeding referred to in Sections 7.1 and 7.2 hereof, or in defense of any claim, issue or matter therein, such Agent shall be indemnified against expenses, including attorneys’ fees actually and reasonably incurred by such Agent in connection therewith.

Section 7.5 Advances of Expenses. Except as limited by Section 7.6 of this Article VII, expenses incurred by an Agent in defending any Proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding, if the Agent shall undertake to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified as authorized in this Article VII. Notwithstanding the foregoing, no advance shall be made by the Corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of a quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board of Directors or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interest of the Corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful.

Section 7.6 Right of Agent to Indemnification upon Application; Procedure Upon Application. Any indemnification or advance under this Article VII shall be made promptly, and in any event within ninety (90) days, upon the written request of the Agent, unless a determination shall be made in the manner set forth in the second sentence of Section 7.5 hereof that such Agent acted in a manner set forth therein so as to justify the Corporation’s not indemnifying or making an advance to the Agent. The right to indemnification or advances as granted by this Article VII shall be enforceable by the Agent in any court of competent jurisdiction, if the Board of Directors or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety (90) days. The Agent’s expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the Corporation.

Section 7.7 Other Rights and Remedies. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall not be deemed exclusive of any other rights to which an Agent seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be an Agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article VII shall be deemed to be provided by a contract between the Corporation and the Agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the NRS and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing.

Section 7.8 Indemnification Contracts. The Board of Directors is authorized to cause the Corporation to enter into indemnification contracts with any Agent, or any person serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing indemnification rights to such person. Such rights may be greater than those provided in this Article VII.

15

284539793 v3

Section 7.9 Insurance. Upon resolution passed by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any person who is or was an Agent against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VII.

Section 7.10 Constituent Corporations. For the purposes of this Article VII, references to “the Corporation” shall include, in addition to the resulting corporation, all constituent corporations (including all constituents of constituents) absorbed in a consolidation or merger as well as the resulting or surviving corporation, which, if the separate existence of such constituent corporation had continued, would have had power and authority to indemnify its Agents, so that any Agent of such constituent corporation shall stand in the same position under the provisions of the Article VII with respect to the resulting or surviving corporation as that Agent would have with respect to such constituent corporation if its separate existence had continued.

Section 7.11 Other Enterprises, Fines and Service at the Corporation’s Request. For purposes of this Article VII, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation (including as a manager of a limited liability company) that imposes duties on, or involves services by, such director, officer, employee or agent with respect to any employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.

Section 7.12 Savings Clause. If this Article VII or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Agent as to expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether internal or external, including a grand jury proceeding and an action or suit brought by or in the right of the Corporation, to the full extent permitted by any applicable portion of this Article VII that shall not have been invalidated, or by any other applicable law.

Section 7.13 Effect of Amendment. Any amendment, repeal or modification of any provision of this Article VI shall be prospective only, and shall not adversely affect any right or protection conferred on a person pursuant to this Article VII and existing at the time of such amendment, repeal or modification.

Section 7.14 Retroactive Effect. To the extent permitted by applicable law, the rights and powers granted pursuant to this Article VII shall apply to acts and actions occurring or in progress prior to its adoption by the Board of Directors.

Article VIII
RECORDS AND BOOKS

Section 8.1 Maintenance of Share Register. The Corporation shall keep at its principal executive office, or at the office of its transfer agent or registrar, if either be appointed and as determined by resolution of the Board of Directors, a record of its stockholders, giving the names and addresses of all stockholders of record and the number and class of shares held by each stockholder.

Section 8.2 Maintenance of Bylaws. The Corporation shall keep at its principal executive office, the original or a copy of the Bylaws as amended to date, which shall be open to inspection by the stockholders at all reasonable times during office hours. If the principal executive office of the Corporation is outside this state and the Corporation has no principal business office in this state, the secretary shall, upon the written request of any stockholder, furnish to such stockholder a copy of the Bylaws as amended to date.

Section 8.3 Maintenance of Other Corporate Records. The accounting books and records and minutes of proceedings of the stockholders and the board of directors and any committee or committees of the Board of Directors shall be kept at such place or places designated by the Board of Directors, or, in the absence of such designation, at

16

284539793 v3

the principal executive office of the Corporation. The minutes shall be kept in written form and the accounting books and records shall be kept either in written form or in any other form capable of being converted into written form.

Section 8.4 Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on or by means of, or be in the form of, diskettes or any other information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provision of the NRS.

Section 8.5 Directors’ Inspection Right; Reliance Upon Books and Records.

(a) Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of this Corporation and any subsidiary of this Corporation. Such inspection by a director may be made in person or by agent or attorney and the right of inspection includes the right to copy and make extracts. The foregoing rights of inspection shall extend to the records of each subsidiary of the Corporation.

(b) A member of the Board of Directors, or a member of any committee designated by the Board of Directors shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

Article IX
INTERESTED DIRECTORS

Section 9.1 Interested Directors.

(a) A contract or other transaction is not void or voidable solely because the contract or transaction is between the Corporation and one or more of its directors or officers or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or are financially interested; or solely because a common or interested director or officer is present at the meeting of the Board of Directors or a committee thereof that authorizes or approves the contract or transaction; or joins in the signing of a written consent that authorizes or approves the contract or transaction pursuant to subsection 2 of NRS 78.315; or any successor statute, or the vote or votes of a common or interested director are counted for the purpose of authorizing or approving the contract or transaction, provided that (a) the fact of the common directorship, office or financial interest is known to the Board of Directors or committee, and the Board or committee authorizes, approves or ratifies the contract or transaction in good faith by a vote sufficient for the purpose without counting the vote or votes of the common or interested director or directors; (b) the fact of the common directorship, office or financial interest is known to the stockholders, and they approve or ratify the contract or transaction in good faith by a majority vote of stockholders holding a majority of the voting power (the votes of the common or interested directors or officers must be counted in any such vote of stockholders); (c) the fact of the common directorship, office or financial interest is not known to the director or officer at the time the transaction is brought before the Board of Directors for action; or (d) the contract or transaction is fair as to the Corporation at the time it is authorized or approved. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee thereof that authorizes, approves or ratifies a contract or transaction, and if the votes of the common or interested directors are not counted at the meeting, then a majority of the disinterested directors may authorize, approve or ratify a contract or transaction. The foregoing notwithstanding, the fact that the vote or votes of the common or interested director or directors are not counted in the circumstances contemplated above does not prohibit any authorization, approval or ratification of a contract or transaction to be given by written consent pursuant to subsection 2 of NRS 78.315, or any successor statute, regardless of whether the common or interested director signs such written consent or abstains in writing from providing consent.

17

284539793 v3

(b) Unless otherwise provided in the Articles of Incorporation or these Bylaws, the Board of Directors, without regard to personal interest, may establish the compensation of directors for services in any capacity. If the Board of Directors establishes the compensation of directors pursuant to this Section 9.1, such compensation is presumed to be fair to the corporation unless proven unfair by a preponderance of the evidence.

Article X
GENERAL CORPORATE MATTERS

Section 10.1 Notice.

(a) Except as otherwise specifically provided in these Bylaws (including, without limitation, Section 10.1(b) below) or required by law, all notices required to be given pursuant to these Bylaws shall be in writing and may in every instance be effectively given by hand delivery (including use of a delivery service), by depositing such notice in the mail, postage prepaid, or by sending such notice by prepaid telegram, telex, overnight express courier, mailgram or facsimile. Any such notice shall be addressed to the person to whom notice is to be given at such person’s address as it appears on the records of the Corporation. The notice shall be deemed given (i) in the case of hand delivery, when received by the person to whom notice is to be given or by any person accepting such notice on behalf of such person, (ii) in the case of delivery by mail, upon deposit in the mail, (iii) in the case of delivery by overnight express courier, when dispatched, and (iv) in the case of delivery via telegram, telex, mailgram or facsimile, when dispatched. Notice given pursuant to this Section 10.1(a) shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the person has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the person has consented to receive notice; (iii) if by any other form of electronic transmission, when directed to the person.

(b) Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the NRS, the Articles of Incorporation, or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (i) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (ii) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this Section 10.1(b) shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder.

(c) An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given in writing or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

(d) Whenever notice is required to be given under any provision of these Bylaws, a written waiver of notice, signed by the person entitled to notice, or waiver by electronic transmission by such person, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any waiver of notice.

Section 10.2 Record Date. For purposes of determining the stockholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days prior to the date of any such meeting nor more

18

284539793 v3

than sixty (60) days prior to any other action, and in such case only stockholders of record on the date so fixed are entitled to notice and to vote or to receive the dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date fixed as aforesaid, except as otherwise provided in the NRS.

If the Board of Directors does not so fix a record date:

(a) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.

(b) The record date for determining stockholders entitled to give consent to corporate action in writing without a meeting, when no prior action by the board has been taken, shall be the day on which the first written consent is given.

(c) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board adopts the resolution relating thereto, or the sixtieth (60th) day prior to the date of such other action, whichever is later.

Section 10.3 Closing of Transfer Books. The Board of Directors may prescribe a period not exceeding sixty (60) days prior to any meeting of the stockholders during which no transfer of stock on the books of the Corporation may be made, or may fix a date not more than sixty (60) days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting.

Section 10.4 Checks, Drafts, Evidences of Indebtedness. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board of Directors.

Section 10.5 Corporate Contracts and Instruments; How Executed. The Board of Directors, except as in the Bylaws otherwise provided, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances; and, unless so authorized or ratified by the Board of Directors or within the agency power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or to any amount.

Section 10.6 Dividends and Other Distributions. Dividends (including share dividends as contemplated by NRS 78.215) and distributions upon the capital stock of the Corporation, subject to the provisions of the Articles of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting pursuant to law. Dividends and distributions may be paid in cash, in property, or in shares of the capital stock (in the case of a share dividend), subject to the provisions of the Articles of Incorporation. Before payment of any dividend or distribution, there may be set aside out of any funds of the Corporation available for dividends or distributions such sum or sums as the directors from time to time, in their absolute discretion, deem proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall deem conducive to the interest of the Corporation, and the directors may modify or abolish any such reserves in the manner in which it was created.

Section 10.7 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.

Section 10.8 Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its incorporation and the words “Corporate Seal, Nevada.”

19

284539793 v3

Section 10.9 Representation of Shares of Other Corporations. The chairman of the board, the president, or any vice president, or any other person authorized by resolution of the Board of Directors by any of the foregoing designated officers, is authorized to vote on behalf of the Corporation any and all shares of any other corporation or corporations, foreign or domestic, standing in the name of the Corporation. The authority herein granted to said officers to vote or represent on behalf of the Corporation any and all shares held by the Corporation in any other corporation or corporations may be exercised by any such officer in person or by any person authorized to do so by proxy duly executed by said officer.

Section 10.10 Articles of Incorporation Governs. In the event of any conflict between the provisions of the Corporation’s Articles of Incorporation and Bylaws, the provisions of the Articles of Incorporation shall govern.

Section 10.11 Construction and Definitions. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the NRS shall govern the construction of the Bylaws. Without limiting the generality of the foregoing, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.

Section 10.12 Severability. If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Corporation’s Articles of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Articles of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Articles of Incorporation) shall remain in full force and effect.

Section 10.13 Application of NRS 78.378-78.3793. The Company hereby elects not to be governed by, and to otherwise opt out of, the provisions of NRS 78.378 to 78.3793, inclusive, relating to acquisition of a controlling interest in the Company.

Article XI
AMENDMENT

Section 11.1 Amendment of Bylaws.

(a) Board of Directors. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to amend or repeal these Bylaws or to adopt new bylaws.

(b) Stockholders. Notwithstanding Section 11.1(a), these Bylaws may be amended or repealed in any respect, and new bylaws may be adopted, in each case by the affirmative vote of the holders of a majority of the stock having voting power present in person or represented by proxy.

20

284539793 v3

EX-10.1

Exhibit 10.1

TERM LOAN AGREEMENT

by and between

S&W SEED COMPANY,

a Nevada Corporation,

as Borrower

and

AGAMERICA LENDING LLC,

a Florida limited liability company,

as Lender

dated as of

June 20, 2023

DOCS/2960446.5

TABLE OF CONTENTS

Page

ARTICLE I. DEFINITIONS AND ACCOUNTING MATTERS	1
Section 1.01. Certain Defined Terms	1
Section 1.02. Accounting Matters/Rounding	4
Section 1.03. Construction	5
ARTICLE II. AMOUNTS AND TERMS OF THE FACILITIES	5
Section 2.01. The Term Loan	5
Section 2.02. Fee	………………………………………………………………………………..5
Section 2.03. Repayment of Principal	5
Section 2.04. Withholding Taxes	5
Section 2.05. Maximum Amount Limitation	6
Section 2.06. Lender Records	6
ARTICLE III. CONDITIONS PRECEDENT	6
Section 3.01. Conditions Precedent to Term Loan	6
ARTICLE IV. REPRESENTATIONS AND WARRANTIES	8
Section 4.01. Representations and Warranties of Borrower	8
ARTICLE V. COVENANTS OF BORROWER	10

Revolving Credit and Term Loan Agreement

2

DOCS/2960446.5

Section 5.01. Affirmative Covenants	10
Section 5.02. Negative Covenants	14
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES	14
Section 6.01. Events of Default	14
Section 6.02. Remedies	16
ARTICLE VII. MISCELLANEOUS	16
Section 7.01. Amendments, etc	16
Section 7.02. Notices, etc	16
Section 7.03. No Waiver; Remedies	17
Section 7.04. Costs, Expenses and Taxes	17
Section 7.05. Right of Set-off	18
Section 7.06. Severability of Provisions	18
Section 7.07. Binding Effect; Successors and Assigns; Participations	18
Section 7.08. Consent to Jurisdiction	18
Section 7.09. Governing Law	19
Section 7.10. Execution in Counterparts	19
Section 7.11. WAIVER OF JURY TRIAL	19
Section 7.12. Entire Agreement	19
Section 7.13. Survival	19

Revolving Credit and Term Loan Agreement

3

DOCS/2960446.5

THIS TERM LOAN AGREEMENT (this “Agreement”), dated as of June 20, 2023, is entered into by and between S&W SEED COMPANY, a Nevada corporation (“Borrower”), and AGAMERICA LENDING LLC, a Florida limited liability company (“Lender”). In consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

ARTICLE I TC "ARTICLE I" \l "1" \u

DEFINITIONS AND ACCOUNTING MATTERS TC "DEFINITIONS AND ACCOUNTING MATTERS" \l "1" \u

Section 1.01. Certain Defined Terms TC "Section 1.01. Certain Defined Terms" \l "2" \u. As used in this Agreement, the following terms shall have the following meanings:

“Agreement” means this Term Loan Agreement, as specified in the introduction hereto, and as the same may hereafter be amended, restated, amended and restated, supplemented or otherwise modified from time to time..

“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, as amended from time to time and any successor statute and all rules and regulations promulgated thereunder.

“Borrower” has the meaning specified in the introduction hereto.

“Business Day” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, Florida.

"CIBC Loan Agreement" means that certain Amended and Restated Loan Agreement dated as of March 22, 2023, by and between Borrower and Operating Lender, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Closing Date” means June 20, 2023.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means the property in which any Liens have been granted in favor of Lender pursuant to the Mortgage or any other Collateral Document as security for the Loan Obligations.

“Collateral Documents” mean the Mortgage and any other documents granting a Lien in the Collateral now or hereafter provided by Borrower to Lender.

"Consolidated" means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.

“Debt” means, without duplication: (a) indebtedness for borrowed money or for the deferred purchase price of property or services; (b) obligations as lessee under capital leases that have been or should be, in accordance with GAAP, recorded as liabilities of such Person; and (c) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (a) or (b) above.

Revolving Credit and Term Loan Agreement

4

DOCS/2960446.5

“Debtor Relief Law” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Dispose” means the sale, transfer, license, lease, or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer, or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Environmental Laws” means all Laws relating to environmental, health, safety, and land use matters applicable to any property.

“Environmental Permit” means any permit, license, approval, or other authorization with respect to any activities, operations, or businesses conducted on, under or in relation to the Real Estate obtained or required in connection with any Environmental Law.

“Event of Default” has the meaning specified in Section 6.01.

“Fee” means the amount of $64,500.00.

“Fiscal Year” means each twelve (12) month accounting period of Borrower, which ends on June 30 of each year.

“GAAP” has the meaning specified in Section 1.02.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government.

“Laws” means collectively all federal, state and local statutes, guidelines, rules, regulations, ordinances, codes, and administrative or judicial orders, precedents, or authorities.

“Lender” has the meaning specified in the introduction hereto.

“Lien” means, with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“Loan Documents” means this Agreement, the Collateral Documents, the Note and all other agreements, documents, instruments, and certificates of Borrower delivered to or in favor of Lender under this Agreement or in connection herewith, including, without limitation, all agreements, documents, instruments, and certificates delivered in connection with the extension of the Term Loan.

“Loan Obligations” means all obligations, indebtedness, and liabilities of Borrower to Lender arising pursuant to any of the Loan Documents, whether now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated or unliquidated, including, without limitation, the

Revolving Credit and Term Loan Agreement

5

DOCS/2960446.5

obligation of Borrower to repay the outstanding principal and interest on the Term Loan, and pay all fees, costs, and expenses (including reasonable and documented attorneys’ fees and expenses) provided for in the Loan Documents.

“Material Adverse Effect” means any set of circumstances or events that: (a) have a material adverse effect upon the validity or enforceability of any Loan Document or any material term or condition contained in any Loan Document; (b) have a material adverse effect on the financial condition, business assets, operations, or property of Borrower; or (c) materially impairs the ability of the Borrower to perform its Loan Obligations under this Agreement.

“Maximum Rate” means the maximum non-usurious rate of interest under applicable Law.

“MFP” means MFP Partners, L.P., a Delaware limited partnership.

“MFP Loan Agreement” shall mean that certain Subordinate Loan and Security Agreement, dated as of September 22, 2022, by and between MFP and the Borrower, as amended by that First Amendment to Subordinate Loan and Security Agreement, dated as of October 28, 2022, that Second Amendment to Subordinate Loan and Security Agreement, dated as of December 22, 2022, that Third Amendment to Subordinate Loan and Security Agreement, dated as of the date hereof, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“MFP Subordination Agreement” means that certain Subordination Agreement dated as of September 22, 2022, by and between the Operating Lender and MFP, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Mortgage” means any mortgage, deed of trust, or similar real estate collateral document executed by Borrower to and in favor of Lender, granted Lender a Lien on the Real Estate, in a form as provided by Lender.

“Non-Excluded Taxes” has the meaning specified in Section 2.04.

“Note” means a promissory note by Borrower to and in favor of Lender evidencing the Term Loan, in a form as provided by Lender.

"Operating Lender" means CIBC Bank USA, and its successors and/or assigns.

“Operating Lender Intercreditor Agreement” means that certain Intercreditor Agreement between Lender and Operating Lender dated as of the Closing Date.

“Ordinary Trade Payable Dispute” means trade accounts payable, in an aggregate amount not in excess of $200,000 with respect to Borrower, with respect to which: (a) there exists a bona fide dispute between Borrower and the vendor; (b) Borrower is contesting the same in good faith by appropriate proceedings; and (c) Borrower has established appropriate reserves on its financial statements.

“Organization Documents” mean the certificate or articles of formation and the operating agreement of Borrower or other applicable agreement of formation, and any certificate, agreement, instrument, filing, or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization.

“Permits” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from any Governmental

Revolving Credit and Term Loan Agreement

6

DOCS/2960446.5

Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

"Permitted Liens" shall mean (i) Liens incurred, acquired or assumed by the Borrowers under this Agreement and the Obligations in favor of the Lender, and any Liens incurred pursuant to, or in connection with, the CIBC Loan Agreement in favor of the Operating Lender; (ii) Liens for taxes, assessments and governmental charges not yet due and payable or which are being contested in good faith and by appropriate proceedings; (iii) zoning restrictions and easements, licenses, covenants and other restrictions affecting the use of real property that do not individually or in the aggregate have a Material Adverse Effect on the Borrower’s ability to use such real property for its intended purpose in connection with such the Borrower’s business; (iv) judgement Liens not constituting an Event of Default under Section 6.01(i); (v) Liens granted in respect of and in accordance with the Specified Letter of Credit Documents; and (vi) those encumbrances and restrictions of record set forth in the Title Policy; such other Liens as may be permitted by the Mortgage and the other Loan Documents.

“Person” means any individual, corporation, business trust, association, company, partnership, joint venture, Governmental Authority, or other entity.

“Real Estate” means approximately 30.86 gross acres of land located in Lubbock and Moore County, Texas owned by Borrower and legally described in the Mortgage.

“Responsible Officer” means a duly authorized officer of Borrower.

“Specified Letter of Credit” shall mean that certain Letter of Credit No. NUSCG044349 issued by JPMorgan Chase Bank, N.A., for the account of MFP, naming the Operating Lender as beneficiary, in the original face amount of $9,000,000, as amended on or before the October 28, 2022, increasing the face amount to $12,000,000, as amended on or before the Closing Date, increasing the face amount to $13,000,000, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Specified Letter of Credit Documents” shall mean (a) the Specified Letter of Credit, the MFP Loan Agreement, and the MFP Subordination Agreement, and (b) any other instrument, agreement, or document entered into, now or in the future, by the Borrower and any other parties in connection with the Specified Letter of Credit.

“Term Loan” means the loan made under Section 2.01(a) and has the meaning specified therein.

“Term Loan Commitment” means $4,300,000.00.

“Title Policy” has the meaning specified in Section 3.01(i).

“UCC” means the Uniform Commercial Code in effect in the State of Florida, provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Nebraska, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

Section 1.02. Accounting Matters/Rounding. TC "Section 1.02. Accounting Matters/Rounding" \l "2" \u Unless the context otherwise clearly requires, all accounting terms not

Revolving Credit and Term Loan Agreement

7

DOCS/2960446.5

expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with generally accepted accounting principles consistently applied (“GAAP”) except as otherwise stated herein. If any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document and either Borrower or Lender shall so request, Borrower and Lender shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided, that, until so amended: (a) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein; and (b) Borrower shall provide to Lender financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. To enable the ready and consistent determination of compliance by Borrower with the Loan Obligations, Borrower will not change the manner in which either the last day of its fiscal year or the last days of the first three fiscal quarters of its fiscal year are calculated. Any financial ratios required to be maintained by Borrower pursuant to the Loan Documents shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number using the common- or symmetric arithmetic- method (in other words, rounding-up if there is no nearest number). Notwithstanding anything to the contrary in this Agreement, all obligations of any Person that would have been treated as operating leases pursuant to GAAP prior to the effectiveness of Accounting Standards Codification 842 shall continue to be treated as operating leases for purposes of the definitions of “Debt” and “Liens” and related covenants.

Section 1.03. Construction. TC "Section 1.03. Construction" \l "2" \u Wherever herein the singular is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The headings, captions or arrangements used in any of the Loan Documents are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of the Loan Documents, nor affect the meaning thereof.

ARTICLE II TC "ARTICLE II" \l "1" \u

AMOUNTS AND TERMS OF THE FACILITIES TC "AMOUNTS AND TERMS OF THE FACILITIES" \l "1" \u

Section 2.01. The Term Loan. TC "Section 2.01. The Term Loans" \l "2" \u

(a) Term Loan. Lender agrees, under the terms and conditions of the Loan Documents, to extend to Borrower, as of the Closing Date, a loan in a single advance in the amount of the Term Loan Commitment (“Term Loan”).

(b) Use of Proceeds. The proceeds of the Term Loan shall be used by Borrower for working capital and general corporate purposes.

Section 2.02. Fee. TC "Section 2.02. Fee" \l "2" \u Borrower shall on the Closing Date pay to Lender the Fee, which Fee shall be deemed fully earned and non-refundable.

Section 2.03. Repayment of Principal and Interest. TC " Section 2.03. Repayment of Principal" \l "2" \u Borrower shall repay to Lender the principal and interest amount of the Term Loan in accordance with the Note.

Section 2.04. Withholding Taxes TC "Section 2.04. Withholding Taxes" \l "2" \u. All payments by Borrower of amounts payable under any Loan Document shall be payable without deduction for or on account of any present or future taxes, duties, or other charges levied or imposed by any Governmental Authority through withholding or deduction with respect to any such payments, except as

Revolving Credit and Term Loan Agreement

8

DOCS/2960446.5

required by applicable Law. If any taxes, duties, or other charges are so levied or imposed (but excluding any tax, duty or charge levied or imposed on or measured by the net income or profit of Lender) (all such taxes, duties or other changes, the “Non-Excluded Taxes”), Borrower shall make additional payments in such amounts so that every net payment of amounts payable by Borrower under any Loan Document, after withholding or deduction for or on account of any Non-Excluded Taxes, will be equal to the amount provided for herein or therein, except to the extent any such Non-Excluded Taxes result from an assignment or participation by Lender to a Person that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code that is exempt from backup withholding tax. Prior to the date hereof, Lender shall provide Borrower a duly completed original copy of Internal Revenue Service Form W-9 indicating Lender’s complete exemption from backup withholding tax.

Section 2.05. Maximum Amount Limitation TC "Section 2.05. Maximum Amount Limitation" \l "2" \u. Anything in this Agreement or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay interest on any of the Obligations at a rate in excess of the Maximum Rate, if any. If the effective rate of interest which would otherwise be payable under the Loan Documents or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under this Agreement or any of the other Loan Documents shall be reduced to the Maximum Rate, if any. If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Obligations to Lender under this Agreement or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, be credited on the principal of such Obligations (which amount credited shall not be subject to any prepayment premiums or penalties under this Agreement or any of the other Loan Documents). It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable Law, all calculations of the rate of interest or discount contracted for, charged or received by Lender under this Agreement, or under any of the other Loan Documents, that are made for the purpose of determining whether such rate exceeds the Maximum Rate applicable to Lender, if any, shall be made, to the extent permitted by applicable Laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full term of the Term Loan and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith. This Section 2.05 shall control every other provision of all agreements among the parties to this Agreement pertaining to the transactions contemplated by or contained in the Loan Documents, and the terms of this Section 2.05 shall be deemed to be incorporated in every Loan Document and communication related thereto.

Section 2.06. Lender Records TC "Section 2.06. Lender Records" \l "2" \u. The Term Loan and all payments or prepayments made thereunder on account of principal or interest may be evidenced by Lender in accordance with its usual practice in an account or accounts evidencing the Term Loan, all payments or prepayments thereunder from time to time, and the amounts of principal and interest payable and paid from time to time thereunder. In any legal action or proceeding in respect of the Obligations, absent manifest error, the entries made in such account or accounts shall be prima facie evidence of the existence and amount of the Term Loan and all payments or prepayments made thereunder on account of principal or interest.

Revolving Credit and Term Loan Agreement

9

DOCS/2960446.5

ARTICLE III TC "ARTICLE III" \l "1" \u

CONDITIONS PRECEDENT TC "CONDITIONS PRECEDENT" \l "1" \u

Section 3.01. Conditions Precedent to Term Loan TC "Section 3.01. Conditions Precedent to Term Loan" \l "2" \u. The effectiveness of this Agreement and the obligation of Lender to make the Term Loan are subject to the conditions precedent that Lender shall have received the following, in form and substance satisfactory to Lender:

(a) This Agreement duly executed by Borrower and Lender.

(b) The Note duly executed by Borrower.

(c) The Operating Lender Intercreditor Agreement executed by Operating Lender and Lender.

(d) Copies of the Organization Documents.

(e) Such certificates of resolutions or other action or other certificates of a Responsible Officer as Lender may require evidencing the identity, authority and capacity of any Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower is a party.

(f) Such documents and certificates as Lender may reasonably require to evidence that Borrower is duly organized or formed and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

(g) Evidence that the costs and expenses (including, without limitation, reasonable and documented attorneys’ fees) referred to in Section 7.04(a), to the extent incurred and invoiced, shall have been (or will be simultaneously with the making of the Term Loan hereunder) paid in full.

(h) A satisfactory review by Lender of any pending litigation relating to Borrower (if any).

(i) Copies of all Permits required by any Governmental Authority relating to the operations of Borrower.

(j) The duly executed Mortgage covering all of the Real Estate, together with evidence the Mortgage will be recorded in all places to the extent necessary or desirable, in the judgment of Lender, to create valid and enforceable first priority Liens in favor of Lender (subject to Liens permitted by the Loan Documents) in all of the Real Estate.

(k) An ALTA Lender’s extended coverage policy of title insurance in liability amount satisfactory to Lender, insuring the Mortgage as a first-priority Lien on the Real Estate, subject only to exceptions to which Lender has consented in writing, and containing such endorsements as Lender may reasonably require (collectively, the “Title Policy”).

(l) The Fee (unless the parties agree that the Fee will be deducted from the disbursement made from Lender to Borrower on the Closing Date).

(m) Financing Statement(s) (Form UCC-1), in form and content satisfactory to Lender and in proper filing form under the UCC in all jurisdictions as may be necessary or, in the opinion of Lender, desirable to perfect the Liens created by the Collateral Documents.

Revolving Credit and Term Loan Agreement

10

DOCS/2960446.5

(n) Evidence that all other actions necessary or, in the opinion of Lender, desirable to enable Lender to perfect and protect the Liens created by the Collateral Documents have been taken.

(o) Copies of UCC search reports listing all financing statements and other encumbrances which name Borrower (under its present name and any previous name) and which are filed in the jurisdiction in which Borrower is located or organized.

(p) Evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect.

(q) If requested in writing by Lender, a water assessment approved by Lender concerning the sufficiency and availability of water with respect to the Real Estate, together with any completed questionnaires signed by Borrower regarding such water information.

(r) Evidence that all members, managers, governmental, material third party consents and approvals necessary in connection with the entering into the Loan Documents have been obtained.

(s) All other documents provided for herein or which Lender may reasonably request or require.

The satisfaction of the conditions precedent listed above shall be evidenced by Lender's disbursement of the Term Loan to Borrower.

ARTICLE IV TC "ARTICLE IV" \l "1" \u

REPRESENTATIONS AND WARRANTIES TC "REPRESENTATIONS AND WARRANTIES" \l "1" \u

Section 4.01. Representations and Warranties of Borrower. TC "Section 4.01. Representations and Warranties of Borrowers" \l "2" \u Borrower represents and warrants as follows:

(a) Existence, Qualification and Power; Compliance with Laws. Borrower (i) is duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization; (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (A) own its assets and carry on its business and (B) execute, deliver, and perform its Obligations; and (iii) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or licenses, except in each case referred to in clause (ii)(A) or (iii), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

(b) Authorization; No Contravention. The execution, delivery and performance by Borrower of each Loan Document to which Borrower is a party have been duly authorized by all necessary company or other organizational action, and do not and will not (i) contravene the terms of any of Borrower’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any contractual obligation to which Borrower is a party or affecting Borrower or the properties of Borrower or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which Borrower or its property is subject; or (iii) violate any Law. Borrower is in compliance with all contractual obligations referred to in clause (ii)(A) of this Section 4.01(b), except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

(c) Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for the due execution, delivery

Revolving Credit and Term Loan Agreement

11

DOCS/2960446.5

and performance by Borrower of any Loan Document to which it is a party, except for such approvals and consents which have been made or obtained.

(d) Enforceability. To the knowledge of Borrower, this Agreement is, and each other Loan Document to which Borrower is a party when delivered will be, legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with the Loan Document’s terms, except as limited by Debtor Relief Laws and general principles of equity.

(e) Financial Condition and Operations. All financial statements of Borrower which have been furnished to Lender fairly present in all material respects the financial condition of Borrower as of the date(s) reflected in such financial statements and the results of the operations of Borrower for the period ended on such date(s), all in accordance with GAAP (other than routine fiscal year adjustments made at month-end to achieve full compliance with GAAP), and since the last date of such financial statements to the Closing Date, no event has occurred which has resulted in a Material Adverse Effect.

(f) Insurance. The Collateral is insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are usually carried by entities engaged in similar businesses and owning similar properties in the same general areas in which Borrower operates.

(g) Litigation. As of the Closing Date, (i) there is no known pending or threatened action or proceeding affecting Borrower or any of the other transactions contemplated hereby before any Governmental Authority, mediator, or arbitrator, which reasonably could be expected to have a Material Adverse Effect; and (ii) there are no known outstanding judgments against Borrower which could reasonably be expected to have a Material Adverse Effect.

(h) Use of Proceeds of Loans, etc. (i) No proceeds of the Term Loan will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934; (ii) Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System); and (iii) no proceeds of the Term Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.

(i) Ownership of Property; Liens. Borrower has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(j) Solvency. As of and from and after the date of this Agreement, Borrower: (i) owns and will own assets the fair saleable value of which are (A) greater than the total amount of liabilities (including contingent liabilities) and (B) greater than the amount that will be required to pay the probable liabilities of its then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to it; (ii) has capital that is not unreasonably small in relation to its business as presently conducted or any contemplated or undertaken transaction; and (iii) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due.

(k) Disclosure. As of the Closing Date, to the knowledge of Borrower, all factual information furnished by or on behalf of Borrower in writing to Lender (including, without limitation, all factual information contained in the Loan Documents) for purposes of or in connection with this Agreement, the other Loan Documents or any transaction contemplated herein or therein is true and accurate in all material respects on the date as of which such information is dated or certified and is complete by stating any fact

Revolving Credit and Term Loan Agreement

12

DOCS/2960446.5

necessary to make such information not misleading in any material respect at such time in light of the circumstances under which such information was provided.

(l) Operation of Business. Borrower possesses all licenses, Permits, franchises, patents, copyrights, trademarks, and trade names, or rights thereto, necessary to conduct such Borrower’s businesses substantially as now conducted and as presently proposed to be conducted except those that the failure to so possess could not reasonably be expected to have a Material Adverse Effect. Borrower is not in violation of any valid rights of others with respect to any of the foregoing except violations that could not reasonably be expected to have a Material Adverse Effect.

(m) Investment Company Act. Borrower is not required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(n) Environmental Compliance. To the knowledge of Borrower, no Environmental Laws or claims could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Property or Borrower’s business operations.

(o) Taxes. Borrower has filed all federal, state and other material tax returns and reports required to be filed by it, and has paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon it or its properties, income or assets otherwise due and payable, except those that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against Borrower that would, if sustained, have a Material Adverse Effect.

(p) Rights in Collateral; Priority of Liens. The Collateral is free and clear of all Liens other than the Permitted Liens and the Liens granted pursuant to this Agreement and the Loan Documents will constitute valid and enforceable first, prior, and perfected Liens on the Collateral in favor of Lender.

(q) Proceeds. The proceeds of the Term Loan or other extension of credit referenced above will be used for agricultural or business purposes and shall not be used for or applied to the purchase or maintenance of real estate occupied by any individual party’s primary residence and that no part of the Term Loan proceeds will be used for personal, family or household expenses.

(r) Trust in Lending Act. [Reserved.]

(s) Sufficient Water. As of the date of this Agreement, sufficient water is available and is projected to be available, from verifiable surface and/or ground water sources for the use and operations of the Real Estate.

ARTICLE V TC "ARTICLE V" \l "1" \u

COVENANTS OF BORROWER TC "COVENANTS OF BORROWER" \l "1" \u

Section 5.01. Affirmative Covenants. TC "Section 5.01. Affirmative Covenants" \l "2" \u So long as any Obligations remain unpaid, Borrower will, unless Lender shall otherwise consent in writing:

(a) Compliance with Laws, etc. Comply in all material respects with all applicable Laws, including, without limitation, all employee benefit and Environmental Laws.

(b) Taxes. Pay, before the same become delinquent, all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith (or where failure

Revolving Credit and Term Loan Agreement

13

DOCS/2960446.5

to be in compliance with any such Laws could not reasonably be expected to have a Material Adverse Effect).

(c) Inspection.

(i) If no Event of Default exists, permit representatives and independent contractors of Lender to visit and inspect Borrower’s properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its managers or members, directors, officers and independent public accountants, all at the expense of Borrower, but not to exceed $20,000 in any Fiscal Year, and at such reasonable times during normal business hours and no more than once per Fiscal Year, upon reasonable advance written notice to Borrower; provided, however, that when an Event of Default exists Lender (or any of its respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice.

(ii) If requested by Lender in its sole and reasonable discretion and if no Event of Default exists, permit Lender and its representatives, upon reasonable advance written notice to Borrower, to conduct, at the expense of Borrower, but not to exceed $20,000 in any Fiscal Year, and no more than once per Fiscal Year, an annual (A) personal property asset appraisal on personal property Collateral of Borrower, (B) real estate appraisal on real estate Collateral of Borrower and (C) field exam on the accounts receivable, inventory, payables, controls and systems of Borrower; provided, however, that when an Event of Default exists Lender (or any of its respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower without advance notice.

(iii) If requested by Lender in its sole discretion and if no Event of Default exists, permit Lender, and its representatives, upon reasonable advance written notice to Borrower, to conduct an annual audit of the Collateral at the expense of Borrower, but not to exceed $20,000 in any Fiscal Year, and no more than once per Fiscal Year; provided, however, that when an Event of Default exists, Lender may conduct such audits as it deems necessary, all at the expense of Borrower.

(iv) Upon the reasonable written request of Lender and if no Event of Default exists, furnish or cause to be furnished to Lender, at Borrower’s expense, a report of an environmental assessment of reasonable scope, form and depth, (including, where appropriate, invasive soil or groundwater sampling) by a consultant reasonably acceptable to Lender as to the nature and extent of the presence of any Hazardous Materials on the Real Estate and as to the compliance by Borrower with Environmental Laws on the Real Estate. If Borrower fails to deliver such an environmental report within seventy-five (75) days after receipt of such written request then Lender may arrange for the same, and Borrower hereby grants to Lender and its representatives access to the Real Estate to reasonably undertake such an assessment (including, whether appropriate, invasive soil or groundwater sampling). The reasonable cost of any assessment arranged for by Lender pursuant to this provision will be payable by Borrower, but not to exceed $20,000 in any Fiscal Year, and unless an Event of Default has occurred and is continuing, no more than once per Fiscal Year, on demand and added to the obligations secured by the Collateral Documents.

(d) Reporting Requirements. Furnish to Lender:

(i) as soon as available and in any event no later than 90 days after the end of each Fiscal Year,

(1) Consolidated financial statements for such Fiscal Year, including balance sheets, statements of income and statement of cash flow of Borrower and its subsidiaries

Revolving Credit and Term Loan Agreement

14

DOCS/2960446.5

audited by Crowe LLP or other independent certified public accountants selected by Borrower and reasonably acceptable to the Lender;

(2) Unaudited Consolidated financial statements for such Fiscal Year, including a balance sheet, statements of income and statement of cash flow of Borrower and its subsidiaries;

(3) Consolidated 12-month projection of financial statements for the next Fiscal Year, including a balance sheet, statements of income and statement of cash flows of Borrower; and

(4) any other financial statements for such Fiscal Year of all subsidiaries or affiliates of the Borrower filed with the Securities and Exchange Commission, as reasonably requested by Lender.

(ii) as soon as available and in any event no later than 45 days after the end of each March, June, September and December, Consolidated financial statements for the most recently completed quarter, including a balance sheet, statements of income and statement of cash flow of Borrower.

(iii) upon Lender's written request and within 15 days of such written request, the most recent monthly financial reports of Borrower delivered to the Operating Lender.

(iv) promptly after the assertion or occurrence thereof notice of any action or proceeding against or of any noncompliance by Borrower with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgage to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law; and

(v) such other information regarding the condition or operations, financial or otherwise, of Borrower as Lender may from time to time reasonably request.

(e) Notices TC "(d) Notices" \l "1" \y. Promptly, but in any event within five (5) Business Days, notify Lender:

(i) of the occurrence of any Event of Default;

(ii) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;

(iii) of any material change in accounting policies or financial reporting practices by Borrower thereof; or

(iv) the commencement or the threat of the initiation or the commencement of any lawsuit or other any other legal proceeding against Borrower in an amount in excess of $250,000.

Each notice pursuant to this Section 5.01(e) shall be accompanied by a statement of Borrower setting forth details of the occurrence referred to therein and to the extent applicable, stating what action Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 5.01(e)(i) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

Revolving Credit and Term Loan Agreement

15

DOCS/2960446.5

(f) Insurance. Maintain, in addition to any insurance requirements required by any Loan Document, insurance policies with financially sound and reputable insurance companies in such amounts and covering such risks as are usually carried by entities engaged in similar businesses and owning similar properties in the same general areas in which Borrower operates.

(g) Keeping Books and Records. Maintain proper books of record and account in which full, true, and correct entries in conformity with GAAP shall be made of all dealings and transactions in relation to its business and activities.

(h) Payment of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (i) all tax liabilities, assessments and governmental charges in accordance with and subject to the exceptions provided in Section 5.01(b); (ii) all lawful claims which, if unpaid, would by Law become a Lien upon its property; and (iii) all Debt, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Debt.

(i) Preservation of Existence, etc. (i) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization; (ii) take all reasonable action to maintain all rights, privileges, Permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (iii) preserve or renew all of its material registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

(j) Maintenance of Properties. (i) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and casualty excepted; (ii) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (iii) use the standard of care typical in the industry in the operation and maintenance of its facilities.

(k) Security Interests. Defend the Collateral, upon acquiring knowledge, against all claims and demands of all Persons at any time claiming the same or any interest therein. Comply with the requirements of all Laws in order to grant and provide Lender valid and perfected first priority security interests in the Collateral and upon request of Lender, from time to time, take such action to give effect to the purposes of this Agreement and the other Loan Documents, including filing notices of Liens, UCC financing statements, fixture filings and amendments, renewals and continuations thereof.

(l) Material Notices. Upon acquiring knowledge, give Lender prompt written notice of any and all (i) litigation, arbitration, or administrative proceedings to which Borrower is a party or that affects the Collateral; (ii) other matters that have resulted in or might result in a material adverse change in the Collateral or has resulted in or might result in a Material Adverse Effect; and (iii) any enforcement, cleanup, removal, or other governmental or regulatory actions instituted, completed, or threatened against Borrower or any of its properties.

(m) Conforming Documents. Cooperate, adjust, initial, re-execute and redeliver any and all Loan Documents, including, but not limited to any one or more promissory note(s), deed(s) of trust, real estate mortgage(s), security agreements, deeds, affidavits and closing statements, if deemed necessary or desirable in the sole and reasonable discretion of Lender in order to consummate or complete this Agreement or other Loan Documents to correct any errors in the Loan Documents, or to perfect Lender’s Lien in any Collateral.

Revolving Credit and Term Loan Agreement

16

DOCS/2960446.5

(n) Evidence of Water Availability. At such times as Lender may reasonably request, deliver to Lender a certificate stating that the amount of water and quality of such water available and projected to be available (the “Water Report”) sufficient to conduct the farming and other operations of Borrower and its tenants, which such Water Report shall be certified by the Responsible Officer and/or an authorized officer of any applicable water district or supplier of water.

Section 5.02. Negative Covenants. TC "Section 5.02. Negative Covenants" \l "2" \u So long as any Obligations remain unpaid, Borrower will not, without the written consent of Lender:

(a) Liens, etc. Create or suffer to exist, any Lien or any other type of preferential arrangement, upon or with respect to any Collateral, whether now owned or hereafter acquired, or assign any right to receive income derived from Collateral, except for Permitted Liens.

(b) Fundamental Changes; Disposition of Assets. (i) Merge, dissolve, liquidate, consolidate with or into, another Person; provided, however, the Borrower may merge with one of its subsidiaries so long as the Borrower is the surviving entity, or (ii) Dispose of (whether in one transaction or in a series of transactions) any, all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person other than (X) dispositions in the ordinary course of business, (Y) assets not necessary for the operation of its business, or (Z) assets that are replaced with assets of equivalent or greater value as the asset disposed; except this Section 5.02 (b)(ii) shall not apply to any disposition of the Collateral.

(c) Subsidiaries. Form or otherwise acquire any subsidiary.

(d) [Reserved].

(e) Lines of Business. Engage in any line or lines of business activity, materially different from those currently conducted (other than any line or lines of business activity reasonably related to those currently conducted).

(f) Change of Name, Etc. Change its name, identity, corporate, partnership or other structure, or state of organization, without notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure or state of organization, without first obtaining the prior written consent of Lender.

ARTICLE VI TC "ARTICLE VI" \l "1" \u

EVENTS OF DEFAULT AND REMEDIES TC "EVENTS OF DEFAULT AND REMEDIES" \l "1" \u

ADVANCE \d12 Section 6.01. Events of Default. TC "ADVANCE \d12 Section 6.01. Events of Default" \l "2" \uEach of the following events shall be an “Event of Default”:

(a) Borrower shall fail to pay any principal amount payable hereunder or under the Note within five (5) days following the due date therefor;

(b) Borrower shall fail to pay any other amount payable hereunder, including interest, or under the other Loan Documents within five (5) days following the due date therefor and such failure continues for ten (10) days after receipt of written notice of nonpayment from Lender;

(c) Any representation or warranty made by Borrower under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made;

Revolving Credit and Term Loan Agreement

17

DOCS/2960446.5

(d) Borrower shall fail to deliver any item required under Section 5.01(d) within fifteen (15) days of the date due for delivery of such items as required by Section 5.01(d) or within five (5) days of written notice of such failure to deliver such items, whichever is later;

(e) Borrower shall fail to perform or observe any term, covenant or agreement contained in any Loan Document (other than those listed in any other clause of this Section 6.01) on its part to be performed or observed, and any such failure shall remain unremedied for ten (10) days after written notice thereof shall have been given to Borrower by Lender;

(f) Any Event of Default by Borrower under the CIBC Loan Agreement beyond any grace period provided;

(g) Borrower shall fail to pay any indebtedness in an amount in excess of $100,000 (either in any individual case or in the aggregate) (excluding indebtedness evidenced by this Agreement and excluding Ordinary Trade Payable Disputes), or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness; or any other default under any agreement or instrument relating to any such indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such indebtedness (excluding Ordinary Trade Payable Disputes); or any such indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof (excluding Ordinary Trade Payable Disputes);

(h) Borrower shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property, and, in the case of any such proceeding instituted against it (but not instituted by it) either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur;

(i) Any one or more judgments or orders for the payment of money in excess of $500,000 in excess of valid insurance coverage therefor, in the aggregate shall be rendered against Borrower and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

(j) Any provision of any Loan Document shall for any reason cease to be valid and binding on Borrower or Borrower shall so state in writing, and, in each case, such provision being invalid or nonbinding would have a material adverse impact on the Lender or the Lender's interests.

Revolving Credit and Term Loan Agreement

18

DOCS/2960446.5

Section 6.02. Remedies. TC " Section 6.02. Remedies" \l "2" \u Upon the occurrence of an Event of Default, Lender:

(a) may, by notice to Borrower, declare the Term Loan, all interest thereon, and all other Obligations to be forthwith due and payable, whereupon the Term Loan, all such interest, and all such other Obligations shall become and be forthwith due and payable, without presentment, notice of intent to accelerate or notice of acceleration, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower. In the event of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code, the Term Loan, all interest thereon, and all other Obligations shall automatically become due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by Borrower; and

(b) may exercise all other rights and remedies afforded to Lender under the Loan Documents, applicable Law, or equity.

ARTICLE VII TC "ARTICLE VII" \l "1" \u

MISCELLANEOUS TC "MISCELLANEOUS" \l "1" \u

Section 7.01. Amendments, etc. TC "Section 7.01. Amendments, etc" \l "2" \u No amendment or waiver of any provision of any Loan Document to which Borrower is a party, nor any consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be agreed or consented to by Lender and Borrower, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

Section 7.02. Notices, etc. TC "Section 7.02. Notices, etc" \l "2" \u

(a) General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission) and mailed, faxed or delivered, to the address, facsimile number or (subject to Section 7.02(c)) electronic mail address specified for notices set forth on Schedule 7.02(a) or to such other address as shall be designated by such party in a notice to the other parties, and in the case of any other party, to such other address as shall be designated by such party in a notice to Borrower and Lender. All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the intended recipient or (ii) (A) if delivered by hand or by courier, upon delivery; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and appropriate answerback has been received by the sender; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 7.02(c)), when delivered. Notices and other communications to Lender, however, shall not be effective until actually received by Lender. Any notice or other communication permitted to be given, made or confirmed by telephone hereunder shall be given, made or confirmed by means of a telephone call to the intended recipient at the number specified on Schedule 7.02(a), it being understood and agreed that a voicemail message shall in no event be effective as a notice, communication or confirmation hereunder.

(b) Effectiveness of Facsimile Documents and Signatures. The Loan Documents may be transmitted or signed by facsimile. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually-signed originals and shall be binding on all parties. Lender may also require that any such documents and signatures be confirmed by a manually-signed original thereof. The failure to request or deliver the same, however, shall not limit the effectiveness of any facsimile document or signature.

Revolving Credit and Term Loan Agreement

19

DOCS/2960446.5

(c) Limited Use of Electronic Mail. Electronic mail and internet and intranet websites may be used only to distribute routine communications, such as financial statements and other information, and to distribute Loan Documents for execution by the parties thereto, and may not be used for any other purpose.

(d) Reliance by Lender. Lender shall be entitled to rely and act upon any notices purportedly given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Lender from all losses, costs, expenses and liabilities resulting from the reliance by Lender on each notice purportedly given by or on behalf of Borrower.

Section 7.03. No Waiver; Remedies. TC "Section 7.03. No Waiver; Remedies" \l "2" \u No failure on the part of Lender to exercise, and no delay in exercising, any right under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The remedies provided in the Loan Documents are cumulative and not exclusive of any remedies provided by Law.

Section 7.04. Costs, Expenses and Taxes. TC "Section 7.04. Costs, Expenses and Taxes" \l "2" \u

(a) Borrower agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses actually incurred in connection with the preparation, execution, delivery, filing, recording and administration of the Loan Documents and the other documents to be delivered under the Loan Documents, including, without limitation, the reasonable fees and documented out-of-pocket expenses of outside counsel for Lender actually incurred, and local counsel who may be retained by said counsel, with respect thereto and with respect to advising Lender as to its respective rights and responsibilities under the Loan Documents, and all reasonable and documented costs and expenses (including reasonable and documented counsel fees and expenses actually incurred) for Lender in connection with the enforcement of the Loan Documents and the other documents to be delivered under the Loan Documents, including, without limitation, in the context of any bankruptcy proceedings. In addition, Borrower agrees to pay on demand any expenses of Borrower described in Section 5.01(b). In addition, Borrower shall pay any and all stamp and other similar taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of the Loan Documents and the other documents to be delivered under the Loan Documents (excluding any tax imposed on or measured by the net income or profit of Lender, and any such taxes imposed with respect to an assignment by Lender of this Agreement or any other Loan Documents), and agrees to save Lender harmless from and against all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees.

(b) Borrower hereby indemnifies and holds Lender harmless from and against and shall reimburse Lender with respect to all claims, demands, causes of action, out-of-pocket loss, damage, liabilities, costs and expenses (including reasonable and documented attorneys’ fees and court costs) of any and every kind of character, known or unknown, fixed or contingent, asserted against Lender by any Person at any time and from time to time by reason of or arising out of (i) the breach of any representation or warranty of Borrower as set forth in this Agreement or any Loan Document to which it is a party, and (ii) the failure of Borrower to perform any obligation in this Agreement or any Loan Document to which it is a party required to be performed by Borrower, which indemnification shall survive the termination of this Agreement; provided, however, except to the extent such damages resulted from the willful misconduct or gross negligence of the Lender (as determined in a final, non-appealable judgment by a court of competent jurisdiction). This Section 7.04(b) shall not apply with respect to taxes other than Taxes that are required to be paid by Borrower pursuant to Section 2.04.

Revolving Credit and Term Loan Agreement

20

DOCS/2960446.5

Section 7.05. Right of Set-off. TC "Section 7.05. Right of Set-off" \l "2" \u Lender is hereby authorized at any time while an Event of Default exists to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by Lender to or for the credit or the account of Borrower against any and all of the Loan Obligations, irrespective of whether or not Lender shall have made any demand under such Loan Document and although deposits, indebtedness or such obligations may not have matured or be contingent. Lender agrees promptly to notify Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of Lender under this Section 7.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that Lender may have.

Section 7.06. Severability of Provisions. TC "Section 7.06. Severability of Provisions" \l "2" \u Any provision of this Agreement or of any other Loan Document that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof or affecting the validity or unenforceability of such provision in any other jurisdiction.

Section 7.07. Binding Effect; Successors and Assigns; Participations. TC "Section 7.07. Binding Effect; Successors and Assigns; Participations" \l "2" \u

(a) This Agreement shall be binding upon and inure to the benefit of Borrower and Lender and their successors and assigns, except that Borrower shall not have the right to assign or otherwise transfer any rights hereunder in the Loan Documents or any interest herein or any Loan Documents without the prior written consent of Lender.

(b) Lender shall have the right, without the consent of Borrower, at any time, to sell or assign this Agreement and the other Loan Documents.

(c) Lender shall have the right, without the consent of Borrower, to sell participations in all or any portion of Lender’s obligations, interests, rights, and security under this Agreement, the Term Loan, and any of the other Loan Documents to any other party. Lender’s obligations under the Loan Documents, however, shall remain unchanged. Lender shall remain solely responsible to Borrower for the performance of such obligations, and Borrower shall continue to deal solely and directly with Lender in connection with Lender’s rights and obligations under the Loan Documents.

(d) In connection with any such proposed assignment, negotiation, hypothecation, granting of a participation, or other transfer or arrangement, Lender may disclose to the proposed assignee, participant, or other transferee or institution any information that Borrower is required to deliver to Lender pursuant to this Agreement or the other Loan Documents, and Borrower agrees to cooperate fully with Lender in providing any such information to any proposed assignee, participant, or other transferee or institution.

Section 7.08. Consent to Jurisdiction. TC "Section 7.08. Consent to Jurisdiction" \l "2" \u

(a) Borrower hereby irrevocably submits to the jurisdiction of any FLORIDA State or Federal court, in any action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party, and Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such FLORIDA State court or in such Federal court. Borrower hereby irrevocably waiveS, to the fullest extent IT may effectively do so, the defense of an inconvenient forum to the

Revolving Credit and Term Loan Agreement

21

DOCS/2960446.5

maintenance of such action or proceeding. Borrower irrevocably consents to the service of copies of the summons and complaint and any other process THAT may be served in any such action or proceeding by the mailing of copies of such process to Borrower at ITS address specified in SCHEDULE 7.02(a). Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(b) Nothing in this Section 7.08 shall affect the right of Lender to serve legal process in any other manner permitted by law or affect the right of Lender to bring any action or proceeding against Borrower or its property in the courts of other jurisdictions.

Section 7.09. Governing Law. TC "Section 7.09. Governing Law" \l "2" \uTHIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

Section 7.10. Execution in Counterparts. TC "Section 7.10. Execution in Counterparts" \l "2" \u This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by fax or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 7.11. WAIVER OF JURY TRIAL. TC "Section 7.11. WAIVER OF JURY TRIAL" \l "2" \uBORROWER AND LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT TO WHICH THEY ARE A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.

Section 7.12. Entire Agreement. TC "Section 7.12. Entire Agreement" \l "2" \uTHIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.

Section 7.13. Survival. TC "Section 7.13. Survival" \l "2" \u All covenants, agreements, representations and warranties made by Borrower in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by Lender and shall survive the execution and delivery of the Loan Documents and the making of the Term Loan, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Lender may have had notice or knowledge of any Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as any Obligations are outstanding. The expense reimbursement, additional cost, capital adequacy and indemnification provisions of this Agreement shall survive and remain in full

Revolving Credit and Term Loan Agreement

22

DOCS/2960446.5

force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Obligations, or the termination of this Agreement or any provision hereof.

[NO FURTHER TEXT ON THIS PAGE]

Revolving Credit and Term Loan Agreement

23

DOCS/2960446.5

[SIGNATURE PAGE TO TERM LOAN AGREEMENT]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

AGAMERICA LENDING, LLC,

a Florida limited liability company

By: /s/ Theodore R. M. Miller

Name: Theodore R. M. Miller

Title: Director of Closing

Revolving Credit and Term Loan Agreement

24

DOCS/2960446.5

[SIGNATURE PAGE TO TERM LOAN AGREEMENT]

BORROWER:

S&W SEED COMPANY,

a Nevada corporation

By:_/s/ Mark Wong____________________

Name: Mark Wong

Title: Chief Executive Officer

SCHEDULE 7.02(a)

Notice Addresses

To Lender:

AgAmerica Lending LLC

Attention: Servicing

4030 S Pipkin Road

Lakeland, FL 33811

Attn: Servicing

To Borrower:

S&W Seed Company

2101 Ken Pratt Blvd, Suite 201

Longmont, CO 80501

Attn:

Email:

Revolving Credit and Term Loan Agreement

25

DOCS/2960446.5

EX-10.2

Exhibit 10.2

PROMISSORY NOTE

Loan Amount: $4,300,000.00

Loan Number: Date of Execution: June 20, 2023

FOR VALUE RECEIVED, S&W SEED COMPANY, a Nevada corporation, whose address is 2101 Ken Pratt Blvd, Suite 201, Longmont, Colorado 80501 (collectively the “Borrower”), hereby promises to pay to the order of AGAMERICA LENDING LLC, a Florida limited liability company (the “Lender”), at 4030 South Pipkin Road, Lakeland, Florida, 33811, or at such other place or to such other party or parties as Lender may from time to time designate, the principal sum of FOUR MILLION THREE HUNDRED THOUSAND AND 00/100 DOLLARS ($4,300,000.00) with interest thereon computed from the Date of Execution on the outstanding principal balance at the rate of interest as provided herein.

INTEREST RATE

Interest on this Note shall be payable for the day a disbursement of proceeds of the Loan is made. Regularly scheduled payments of interest on this Note shall include interest accrued to but not including the stated payment date (as herein defined). Payments of principal on this Note shall include interest on the amount paid to but not including the stated payment date, and if payment is received after such day, payment of principal on this Note shall include interest to but not including the next stated payment date.

This Note shall be a variable interest rate note, and interest on the Loan shall accrue on the outstanding principal balance of this Note from the date funds are advanced through the Maturity Date (as hereinafter defined), at an annual rate equal to the Adjusted Term SOFR Rate (as hereinafter defined). Interest shall be computed on the actual number of days in the Interest Period (as hereinafter defined) divided by a 360-day year. The following terms shall have the following meanings when used in this Note. All capitalized terms used in this Note and not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement.

(i)“Adjusted Term SOFR Rate” shall mean, for any Interest Period, a rate per annum equal to 4.85% (the “Margin”) plus the Term SOFR Rate for such Interest Period.

(ii)“Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which banks are authorized or required to be closed for the conduct of commercial banking business in Lakeland, Florida.

(iii)“Interest Period” shall mean, other than for the first Interest Period, the three (3) month period commencing on the Rate Change Date through the day immediately preceding the next Rate Change Date. The first Interest Period shall commence on the date of this Note through, but not including the First Payment Date.

(iv)“Rate Change Date” shall mean the first day of any Interest Period, exclusive of the initial Interest Period. The day of the month of the Rate Change Date shall coincide with the day of the month of the Payment Date.

(v)“SOFR Floor Rate” shall mean 2.00%.

(vi)“Term SOFR” or “Term SOFR Rate” shall mean, the forward-looking term rate based on the secured overnight financing rate (SOFR) as administered by the CME

Group Benchmark Administration Limited as administrator of the forward-looking term SOFR (or a successor administrator of term SOFR selected by the Lender in its reasonable discretion), with a tenor comparable to three (3) month, which rate is published on the date that is two (2) Business Days prior to a Rate Change Date. If prior to the commencement of any Interest Period, Lender determines (which determination shall be binding and conclusive upon the Borrower) that the Term SOFR Rate is: (a) no longer available for any reason; or (b) no longer posted through electronic transmission or is no longer posted or published through other sources; or (c) no longer adequately covers Lender’s costs of making the Loan or Lender determines the Term SOFR Rate is unreliable, Lender shall select a publicly available replacement index that provides a comparable reference rate and maturity date to the Term SOFR Rate (the “Replacement Index”). In addition, Lender, in its sole and absolute discretion, shall have the right to adjust the Margin so that when added to the Replacement Index, the interest rate for next succeeding Interest Period results in an interest rate for such Interest Period that will minimize any change in the cost of the Loan to Lender taking into account the historical performance of the Term SOFR Rate and the Replacement Index (the “Substitute Rate”). In no event shall the Term SOFR Rate (or any subsequent Replacement Index) ever be below the SOFR Floor Rate and in the event the Term SOFR Rate (or any subsequent Replacement Index) should ever fall below the SOFR Floor Rate, the Term SOFR Rate (or any subsequent Replacement Index) shall be deemed to be the SOFR Floor Rate. The Term SOFR Rate shall initially be determined as of the date of the initial advance of funds to Borrower under this Note and shall be effective until the first Rate Change Date.

PREPAYMENTS

Prepayment of principal, in full or in part, prior to the Maturity Date shall be subject to a prepayment premium equal to 1.00% of the prepaid principal (“Prepayment Premium”); provided, however, no Prepayment Premium shall apply to (1) prepayments by funds from Lender, (2) proceeds from any disposition, transfer, or sale of the Collateral, excluding any proceeds from the foreclosure of the Security Instrument, or (3) a prepayment made within sixty (60) days of the Maturity Date. Borrower shall provide ten (10) Business Days’ written notice prior to making any prepayment of principal. Any prepayment of principal not made on a Payment Date shall be subject to interest accruing through the next Payment Date.

REPAYMENT TERMS

Borrower shall pay interest only quarterly in arrears, commencing on June 20, 2023 (“First Payment Date”) and on the same day of each quarter thereafter (i.e., June 20, September 20, December 20, and March 20; each a “Payment Date”), unless otherwise accelerated in accordance with the terms hereof. The entire outstanding principal balance of this Note and any outstanding accrued interest shall be due and payable in full on June 20, 2026 (the “Maturity Date”), unless otherwise accelerated in accordance with the terms and conditions herein.

All payments under this Note shall be applied first to fees and late charges, if any, then to interest, and then to principal. All installments of principal and all interest are payable in lawful money of the United States of America, which shall be legal tender in payment of all debts and dues, public and private, at the time of payment.

Lender may collect a late charge of five (5%) percent of any installment of principal or interest which is not paid within ten (10) days of the due date thereof to cover the extra time and expense involved in handling delinquent payments. Such late charge shall apply to late payments prior to maturity or acceleration. Upon maturity or acceleration, no further late charges shall be assessed, but Borrower shall pay the Default Interest Rate (as hereinafter defined) on all amounts due from the date of maturity or acceleration until the Note is paid in full. The collection of the late charge shall not be deemed a waiver by Lender of interest accruing after the due date of any installment or of any of Lender's other rights under this Note.

All delinquent principal and installments of interest not paid within thirty (30) days of the due date thereof, shall bear interest beginning on the thirty-first (31st) day from the applicable due date at a rate equal to five percent (5%) per annum above the applicable interest rate stated above (the “Default Interest Rate”), provided, however, in no event shall such rate exceed the highest rate authorized by applicable law. Further, any required payment not made on the Maturity Date shall be subject immediately to the Default Interest Rate.

Borrower agrees that the late charge provided above is fair and reasonable compensation to Lender for the additional administrative time and effort incurred in collecting and processing delinquent payments. Borrower further agrees that the Default Interest Rate is a fair and reasonable rate of interest to be charged after maturity or acceleration of this Note in light of the increased risks to Lender inherent in a past due loan and the administrative time and effort incurred in collecting a past due loan.

Should any default occur in the payment as stipulated above of either the interest or principal, and continue for ten (10) days thereafter, then and in that event, the principal of this Note or any unpaid part thereof and all accrued interest thereon shall, in the sole discretion of Lender, at once become due and payable and may be collected forthwith without notice to the undersigned, regardless of the stipulated date of maturity. However, Lender may, in the sole discretion of Lender, accept payments made by Borrower after any default has occurred, without waiving any of Lender’s rights herein.

If this Note is placed in the hands of an attorney for collection or is collected through any legal proceedings, Borrower promises to pay all expenses of collection and reasonable attorney's fees incurred by Lender, including fees incurred prior to trial, at trial, on appeal and in any bankruptcy or creditors reorganization proceedings.

In the event the interest provisions hereof or any exactions provided for herein or in the lien documents or any other instruments securing this Note shall result, because of the deduction of principal or any other reason related or unrelated to the interest provisions, at any time during the life of the loan, in an effective rate of interest which, for any period of time, transcends the limit of the usury or any other law applicable to the loanevidenced hereby, all sums in excess of those lawfully collectible as interest for the period in question shall, without further agreement or notice between or by any party hereto, be applied to principal immediately upon receipt of such monies by Lender with the same force and effect as though the payor had specifically designated such and agreed to accept such extra payment(s) as a Prepayment Premium free payment. Notwithstanding the foregoing, however, Lender may at any time and from time to time elect, by notice in writing to the owners of the property affected by the lien document securing this Note, if any, to reduce or limit the collection of any interest to such sums, which, when added to the said first‑stated interest, shall not result in any payments toward principal in accordance with the requirement of the preceding sentence. In no event shall any agreed to or actual exaction as consideration for this loan transcend the limits imposed or provided by the law applicable to this transaction or Borrower in the jurisdiction in which the land is located for the use or detention of money or for forbearance in seeking its collection.

This Note is secured by one or more deed(s) of trust or real estate mortgage(s), collateral assignment(s), security agreement(s), or other agreement(s) pledging collateral (the “Security Instrument”), to which reference is made from the terms thereof, and the same are made a part of this Note.

A default under any other promissory note now or hereafter secured by the Security Instrument or under any loan document related to the loan evidenced hereby or such other promissory note constitutes a default under this Promissory Note and under the other documents securing this Promissory Note. When the default under the other promissory note constitutes an event of default under that other promissory note or the related loan document, an event of default also will exist under this Promissory Note and the other loan documents.

Borrower and all endorsers, guarantors and all persons liable or to become liable on this Note waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment of this Note, and consent to any and all renewals and extensions of the time of payment hereof.

Lender is not required to rely on any item of collateral for the payment of the Note in the event of default by Borrower, but may proceed directly against Borrower and/or any endorsers or guarantors, if any, in such manner as it deems desirable. None of the rights and remedies of Lender hereunder is to be waived or affected by failure or delay to exercise them. All remedies conferred on Lender by this Note or any other instrument or agreement shall be cumulative, and none is exclusive. Such remedies may be exercised concurrently or consecutively at Lender's option.

This Note shall be governed as to validity, interpretation, construction, effect, and in all other respects by the laws and decisions of the State of Florida.

Wherever possible each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note or portion thereof shall be prohibited by or be invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.

This Note may be assigned by Lender with or without recourse.

Borrower submits to the jurisdiction of any court of competent jurisdiction within the State of Florida. Borrower further agrees to comply with all requirements necessary to give such court in personam jurisdiction and agrees that service of process may be accomplished by, in addition to any other lawful means, certified mail, return receipt requested.

BORROWER AND LENDER BY ACCEPTANCE OF THIS NOTE, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS AGREEMENT.

IN WITNESS WHEREOF, Borrower has executed or caused to be executed these presents on the day and year first above written.

[SIGNATURE PAGE TO PROMISSORY NOTE]

BORROWER:

S&W SEED COMPANY, a Nevada corporation

By: _/s/ Mark Wong__________________________

Name: Mark Wong

Its: Chief Executive Officer

XML

Document and Entity Information	Jun. 20, 2023
Cover [Abstract]
Entity Registrant Name	S&W SEED COMPANY
Security Exchange Name	NASDAQ
Amendment Flag	false
Entity Central Index Key	0001477246
Document Type	8-K
Document Period End Date	Jun. 20, 2023
Entity Incorporation, State or Country Code	NV
Entity File Number	001-34719
Entity Tax Identification Number	27-1275784
Entity Address, Address Line One	2101 Ken Pratt Blvd
Entity Address, Address Line Two	Suite 201
Entity Address, City or Town	Longmont
Entity Address, State or Province	CO
Entity Address, Postal Zip Code	80501
City Area Code	720)
Local Phone Number	506-9191
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	SANW
Entity Emerging Growth Company	false
Current Fiscal Year End Date	--06-30