EXHIBIT 4.6


 


THIS WARRANT HAS NOT BEEN REGISTERED


UNDER THE SECURITIES ACT OF 1933


AND IS NOT TRANSFERABLE


EXCEPT AS PROVIDED HEREIN


 


S&W Seed Company


 


PURCHASE WARRANT


 


Issued to:


 


PAULSON INVESTMENT COMPANY, INC.


 


Exercisable to Purchase


 


140,000 Units


 


 


of


 


 


S&W SEED COMPANY


 


 


Void after                           ,
2015


 

















 


This is to certify that, for value received and subject to the terms
and conditions set forth below, the Warrantholder (hereinafter defined) is
entitled to purchase, and the Company promises and agrees to sell and issue to
the Warrantholder, at any time on or after                       ,
2011 and on or before                     ,
2015, up to 140,000 Units (hereinafter defined) at the Exercise Price
(hereinafter defined).


 


This Warrant Certificate is issued subject to the following terms and
conditions:


 


1.                                       Definitions of Certain Terms. 
Except as may be otherwise clearly required by the context, the
following terms have the following meanings:


 


(a)                                  “Act” means the Securities Act of 1933,
as amended.


 


(b)                                 “Class A Warrant” means
a redeemable Class A warrant to purchase one share of Common Stock at an
exercise price of $      , as defined in the
Warrant Agreement.


 


(c)                                  “Class B Warrant” means
a redeemable Class B warrant to purchase one share of Common Stock at an
exercise price of $      , as defined in the
Warrant Agreement.


 


(d)                                 “Closing Date” means the date on which
the Offering is closed.


 


(e)                                  “Commission” means the Securities and
Exchange Commission.


 


(f)                                    “Common Stock” means the common stock,
par value $0.001, of the Company.


 


(g)                                 “Company” means S&W Seed Company, a
Delaware corporation.


 


(h)                                 “Company’s Expenses” means any and all
expenses payable by the Company or the Warrantholder in connection with an
offering described in Section 6 hereof, except Warrantholder’s Expenses.


 


(i)                                     “Corporate Financing Rule” means Rule 5110
of the rules of the Financial Industry Regulatory Authority.


 


(j)                                     “Effective Date” means the date of the
Company’s final prospectus as filed with the Securities and Commission pursuant
to Rule 424(b) of the Act.


 


(k)                                  “Exercise Price” means the price at which
the Warrantholder may purchase one Unit upon exercise of Warrants as determined
from time to time pursuant to the provisions hereof.  The initial Exercise Price is $13.20 per
Unit.


 


(l)                                     “Offering” means the public offering of
Units made pursuant to the Registration Statement.


 


(m)                               “Participating Underwriter” means any
underwriter participating in the sale of the Securities pursuant to a
registration under Section 6 of this Warrant Certificate.


 


1

















 


(n)                                 “Registration Statement” means the
Company’s registration statement (File No. 333 - 164588) as amended on the
Closing Date.


 


(o)                                 “Rules and Regulations” means the rules and
regulations of the Commission adopted under the Act.


 


(p)                                 “Securities” means the securities
obtained or obtainable upon exercise of the Warrant or securities obtained or
obtainable upon exercise, exchange, or conversion of such securities.


 


(q)                                 “Unit” means two shares of Common Stock,
one Class A Warrant, and one Class B Warrant.


 


(r)                                    “Unit Warrants” means the Class A
Warrants and the Class B Warrants.


 


(s)                                  “Warrant Agreement” means that certain
Warrant Agreement, dated as of                     ,
2010, by and between the Company and Transfer Online, Inc. relating to the
issuance of Unit Warrants.


 


(t)                                    “Warrant Certificate” means a certificate
evidencing the Warrant.


 


(u)                                 “Warrantholder” means a record holder of
the Warrant or Securities.  The initial Warrantholder
is Paulson Investment Company, Inc.


 


(v)                                 “Warrantholder’s Expenses” means the sum
of (i) the aggregate amount of cash payments made to an underwriter,
underwriting syndicate, or agent in connection with an offering described in Section 6
hereof multiplied by a fraction the numerator of which is the aggregate sales
price of the Securities sold by such underwriter, underwriting syndicate, or
agent in such offering and the denominator of which is the aggregate sales
price of all of the securities sold by such underwriter, underwriting
syndicate, or agent in such offering and (ii) all out-of-pocket expenses
of the Warrantholder, except for the fees and disbursements of one firm
retained as legal counsel for the Warrantholder that will be paid by the
Company.


 


(w)                               “Warrant” means the warrant evidenced by
this certificate, any similar certificate issued in connection with the
Offering, or any certificate obtained upon transfer or partial exercise of the
Warrant evidenced by any such certificate.


 


2.                                       Exercise of Warrant. 
All or any part of the Warrant represented by this Warrant Certificate
may be exercised commencing on the first anniversary of the Effective Date and
ending at 5 p.m. Pacific Time on the fifth anniversary of the Effective
Date (the “Expiration Date”) by surrendering this Warrant Certificate, together
with appropriate instructions, duly executed by the Warrantholder or by its
duly authorized attorney, at the office of the Company, 25552 South Butte
Avenue, Five Points, CA 93624; or at such other office or agency as the Company
may designate.  The date on which such
instructions are received by the Company shall be the date of exercise.  Subject to the provisions below, upon receipt
of notice of exercise, the Company shall immediately instruct its transfer
agent to prepare certificates for the Securities to be received by the
Warrantholder upon completion of the Warrant exercise.  When such certificates are prepared, the
Company shall notify the Warrantholder and deliver such 


 


2

















 


certificates to the Warrantholder or as per the
Warrantholder’s instructions immediately upon payment in full by the
Warrantholder, in lawful money of the United States, of the Exercise Price
payable with respect to the Securities being purchased, if any.  If the Warrantholder shall represent and
warrant that all applicable registration and prospectus delivery requirements
for their sale have been complied with upon sale of the Securities received
upon exercise of the Warrant, such certificates shall not bear a legend with
respect to the Act.


 


If fewer than all the Securities purchasable under the Warrant are
purchased, the Company will, upon such partial exercise, execute and deliver to
the Warrantholder a new Warrant Certificate (dated the date hereof), in form
and tenor similar to this Warrant Certificate, evidencing that portion of the
Warrant not exercised.  The Securities to
be obtained on exercise of the Warrant will be deemed to have been issued, and
any person exercising the Warrant will be deemed to have become a holder of
record of those Securities, as of the date of the payment of the Exercise
Price.


 


Notwithstanding the foregoing, in no event shall such Securities be
issued, and the Company is authorized to refuse to honor the exercise of the
Warrant, if such exercise would result in the opinion of the Company’s Board of
Directors, upon advice of counsel, in the violation of any law; and provided
further that, if the Warrant is exercisable solely for Securities listed on a
securities exchange or for which there are at least three independent market
makers, the Company may elect to redeem the Warrant submitted for exercise for
a price equal to the difference between the aggregate low asked price, or
closing price, as the case may be, of the Securities for which the Warrant is
exercisable on the date of exercise and the Exercise Price; in the event of
such redemption, the Company will pay to the holder of the Warrant the
above-described redemption price in cash within 10 business days after receipt
of notice of exercise.


 


3.                                       Adjustments in Certain Events. 
The number, class, and price of Securities for which this Warrant
Certificate may be exercised are subject to adjustment from time to time upon
the happening of certain events as follows:


 


(a)                                  If the outstanding shares of the Company’s
Common Stock are divided into a greater number of shares or a dividend in stock
is paid on the Common Stock, the number of shares of Common Stock and the
number of Unit Warrants for which the Warrant is then exercisable will be
proportionately increased and the Exercise Price will be proportionately
reduced; and, conversely, if the outstanding shares of Common Stock are
combined into a smaller number of shares of Common Stock, the number of shares
of Common Stock and the number of Unit Warrants for which the Warrant is then
exercisable will be proportionately reduced and the Exercise Price and the
number of Unit Warrants will be proportionately increased. The increases and
reductions provided for in this Section 3(a) will be made with the
intent and, as nearly as practicable, the effect that neither the percentage of
the total equity of the Company obtainable on exercise of the Warrants nor the
price payable for such percentage upon such exercise will be affected by any
event described in this Section 3(a).


 


(b)                                 In case of any change in the Common Stock
through merger, consolidation, reclassification, reorganization, partial or
complete liquidation, purchase of substantially all the assets of the Company,
or other change in the capital structure of the Company, then, as a condition
of such change, lawful and adequate provision will be made so that the holder
of this Warrant Certificate will have the right thereafter to receive upon the 


 


3

















 


exercise of the Warrant the kind and amount of shares
of stock or other securities or property to which he would have been entitled
if, immediately prior to such event, he had held the number of shares of Common
Stock and the number of Unit Warrants obtainable upon the exercise of the
Warrant.  In any such case, appropriate
adjustment will be made in the application of the provisions set forth herein
with respect to the rights and interest thereafter of the Warrantholder, to the
end that the provisions set forth herein will thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or other securities
or property thereafter deliverable upon the exercise of the Warrant.  The Company will not permit any change in its
capital structure to occur unless the issuer of the shares of stock or other
securities to be received by the holder of this Warrant Certificate, if not the
Company, agrees to be bound by and comply with the provisions of this Warrant
Certificate.


 


(c)                                  When any adjustment is required to be
made in the number of shares of Common Stock, Unit Warrants, other securities,
or the property purchasable upon exercise of the Warrant, the Company will
promptly determine the new number of such shares or other securities or
property purchasable upon exercise of the Warrant and (i) prepare and
retain on file a statement describing in reasonable detail the method used in
arriving at the new number of such shares or other securities or property
purchasable upon exercise of the Warrant and (ii) cause a copy of such
statement to be mailed to the Warrantholder within thirty (30) days after the
date of the event giving rise to the adjustment.


 


(d)                                 No fractional shares of Common Stock or other
Securities will be issued in connection with the exercise of the Warrant, but
the Company will pay, in lieu of fractional shares, a cash payment therefor on
the basis of the mean between the bid and asked prices of the Common Stock in
the over-the-counter market or the last sale price of the Common Stock on the
principal exchange or other trading facility on which the Common Stock is
traded on the day immediately prior to exercise.


 


(e)                                  If securities of the Company or
securities of any subsidiary of the Company are distributed pro rata to holders
of Common Stock, such number of securities will be distributed to the
Warrantholder or its assignee upon exercise of its rights hereunder as such
Warrantholder or assignee would have been entitled to if this Warrant
Certificate had been exercised prior to the record date for such
distribution.  The provisions with
respect to adjustment of the Common Stock provided in this Section 3 will
also apply to the securities to which the Warrantholder or its assignee is entitled
under this Section 3(e).


 


(f)                                    Notwithstanding anything herein to the
contrary, there will be no adjustment made hereunder on account of the sale by
the Company of the Common Stock or other Securities purchasable upon exercise
of the Warrant.


 


(g)                                 If, immediately prior to any exercise of
Warrants, there shall be outstanding no securities of a class or series that,
but for the provisions of this Section 3, would be issuable upon such
exercise (the “Formerly Issuable Securities”), then, upon such exercise,
and in lieu of the Formerly Issuable Securities, the Company shall issue that
number and kind of other securities or property for which the Formerly Issuable
Securities were most recently exercisable or into which the Formerly Issuable
Securities were most recently convertible, as the case may be.


 


4

















 


4.                                       Reservation of Securities. 
The Company agrees that the number of shares of Common Stock or other
Securities sufficient to provide for the exercise of the Warrant upon the basis
set forth above will at all times during the term of the Warrant be reserved
for exercise.


 


5.                                       Validity of Securities. 
All Securities delivered upon the exercise of the Warrant will be duly
and validly issued in accordance with their terms, and the Company will pay all
documentary and transfer taxes, if any, in respect of the original issuance
thereof upon exercise of the Warrant.


 


6.                                       Registration of Securities Issuable on
Exercise of Warrant Certificate.


 


(a)                                  The Company will register the Securities
with the Commission pursuant to the Act so as to allow the unrestricted sale of
the Securities to the public from time to time commencing on the first
anniversary of the Effective Date and ending at 5:00 p.m. Pacific Time on
the fifth anniversary of the Effective Date (the “Registration Period”).  The Company will also file such applications
and other documents necessary to permit the sale of the Securities to the
public during the Registration Period in those states in which the Units were
qualified for sale in the Offering or such other states as the Company and the
Warrantholder agree to.  In order to
comply with the provisions of this Section 6(a), the Company is not
required to file more than one registration statement.  No registration right of any kind, “piggyback”
or otherwise, will last longer than five years from the Effective Date.


 


(b)                                 The Company will pay all of the Company’s
Expenses and each Warrantholder will pay its pro rata share of the
Warrantholder’s Expenses relating to the registration, offer, and sale of the
Securities.


 


(c)                                  Except as specifically provided herein,
the manner and conduct of the registration, including the contents of the
registration statement, will be entirely in the control and at the discretion
of the Company.  The Company will file
such post-effective amendments and supplements as may be necessary to maintain
the currency of the registration statement during the period of its use.  In addition, if the Warrantholder
participating in the registration is advised by counsel that the registration
statement, in their opinion, is deficient in any material respect, the Company
will use its best efforts to cause the registration statement to be amended to
eliminate the concerns raised.


 


(d)                                 The Company will furnish to the
Warrantholder the number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as it may reasonably request in order to facilitate the disposition
of Securities owned by it.


 


(e)                                  The Company will, at the request of
Warrantholders holding at least 50 percent of the then outstanding Warrants, (i) furnish
an opinion of the counsel representing the Company for the purposes of the
registration pursuant to this Section 6, addressed to the Warrantholders
and any Participating Underwriter, (ii) furnish an appropriate letter from
the independent public accountants of the Company, addressed to the
Warrantholders and any Participating Underwriter, and (iii) make
representations and warranties to the Warrantholders and any Participating
Underwriter.  A request pursuant to this
subsection (e) may be made on three occasions.  The documents required to be delivered
pursuant to this subsection (e) will be 


 


5

















 


dated within ten days of the request and will be, in
form and substance, equivalent to similar documents furnished to the
underwriters in connection with the Offering, with such changes as may be
appropriate in light of changed circumstances.


 


7.                                       Indemnification in Connection with
Registration.


 


(a)                                  If any of the Securities are registered,
the Company will indemnify and hold harmless each selling Warrantholder, any
person who controls any selling Warrantholder within the meaning of the Act,
and any Participating Underwriter against any losses, claims, damages, or
liabilities, joint or several, to which any Warrantholder, controlling person,
or Participating Underwriter may be subject under the Act or otherwise; and it
will reimburse each Warrantholder, each controlling person, and each
Participating Underwriter for any legal or other expenses reasonably incurred
by the Warrantholder, controlling person, or Participating Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability, or action, insofar as such losses, claims, damages, or liabilities,
joint or several (or actions in respect thereof), arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any such registration statement or
any preliminary prospectus or final prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the Company
will not be liable in any case to the extent that any loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any registration statement,
preliminary prospectus, final prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
by a Warrantholder for use in the preparation thereof.  The indemnity agreement contained in this
subparagraph (a) will not apply to amounts paid to any claimant in
settlement of any suit or claim unless such payment is first approved by the
Company, such approval not to be unreasonably withheld.


 


(b)                                 Each selling Warrantholder, as a
condition of the Company’s registration obligation, will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed any registration statement or other filing or any amendment or
supplement thereto, and any person who controls the Company within the meaning
of the Act, against any losses, claims, damages, or liabilities to which the
Company or any such director, officer, or controlling person may become subject
under the Act or otherwise, and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, or action, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained in said
registration statement, any preliminary or final prospectus, or other filing,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in said registration statement,
preliminary or final prospectus, or other filing, or amendment or supplement,
in reliance upon and in conformity with written information furnished by such
Warrantholder for use in the preparation thereof; provided, however, that the
indemnity agreement contained in this 


 


6

















 


subparagraph (b) will not apply to amounts paid
to any claimant in settlement of any suit or claim unless such payment is first
approved by the Warrantholder, such approval not to be unreasonably withheld.


 


(c)                                  Promptly after receipt by an indemnified
party under subparagraphs (a) or (b) above of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, notify the indemnifying
party of the commencement thereof; but the omission to notify the indemnifying
party will not relieve it from any liability that it may have to any
indemnified party otherwise than under subparagraphs (a) and (b).


 


(d)                                 If any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party; and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.


 


8.                                       Restrictions on Transfer. 
This Warrant Certificate and the Warrant may not be sold, transferred,
assigned, pledged, or hypothecated, or be the subject of any hedging, short
sale, derivative, put, or call transaction that would result in the effective
economic disposition of the securities by any person for a period of one year
immediately following the Effective Date, except as permitted in subparagraph
(g)(2) of the Corporate Financing Rule. 
The Warrant may be divided or combined, upon request to the Company by
the Warrantholder, into a certificate or certificates evidencing the same
aggregate number of Warrants.


 


9.                                       No Rights as a Shareholder. 
Except as otherwise provided herein, the Warrantholder will not, by
virtue of ownership of the Warrant, be entitled to any rights of a shareholder
of the Company but will, upon written request to the Company, be entitled to
receive such quarterly or annual reports as the Company distributes to its
shareholders.


 


10.                                 Notice.  Any notices
required or permitted to be given hereunder will be in writing and may be
served personally or by mail; and if served will be addressed as follows:


 


If
to the Company:


 


S&W Seed Company


25552 South Butte Avenue


Five Points, CA 93624


Attention: 
President


 


If
to the Warrantholder:


 


at
the address furnished


by
the Warrantholder to the


Company
for the purpose of


notice.


 


7

















 


Any
notice so given by mail will be deemed effectively given 48 hours after mailing
when deposited in the United States mail, registered or certified mail, return
receipt requested, postage prepaid and addressed as specified above.  Any party may by written notice to the other
specify a different address for notice purposes.


 


11.                                 Applicable Law. 
This Warrant Certificate will be governed by and construed in accordance
with the laws of the State of Oregon, without reference to conflict of laws
principles thereunder.  All disputes
relating to this Warrant Certificate shall be tried before the courts of Oregon
located in Multnomah County, Oregon to the exclusion of all other courts that
might have jurisdiction.


 


	
  Dated
  as of
                            ,
  2010

  	
   

  
	
   

  	
   

  
	
   

  	
  S&W
  SEED COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark
  S. Grewal

  
	
   

  	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed
  and Accepted as of
                            ,
  2010

  	
   

  
	
   

  	
   

  
	
   

  	
  PAULSON
  INVESTMENT COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


8