EXHIBIT 4.2
STOCK TRANSFER AGREEMENT
This STOCK TRANSFER AGREEMENT (this "Agreement") is entered
into and effective as of the 2nd day of April, 2004, by and between GBV
Tri-Power Fund, LLC, a California limited liability company ("Seller") and THE
RICEX COMPANY, a Delaware corporation ("Purchaser").
RECITAL
Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, One Million Three Hundred Forty-Six Thousand Nine Hundred
Sixty-four (1,346,964) shares (the "Shares") of common stock of The RiceX
Company, One Million Three Hundred Forty-Six Thousand Nine Hundred Sixty-four
(1,346,964) Class I warrants (the "Class I Warrants") to purchase an equivalent
number of shares of common stock of The RiceX Company, Six Hundred Seventy-three
Thousand Four Hundred Eighty-two (673,482) Class II warrants (the "Class II
Warrants") to purchase an equivalent number of shares of common stock of The
RiceX Company, and One Million Ten Thousand Two Hundred Twenty-three (1,010,223)
Class III warrants (the "Class III Warrants") to purchase an equivalent number
of shares of common stock of The RiceX Company, upon the terms and conditions
set forth herein. The Shares, the Class I Warrants, the Class II Warrants and
the Class III Warrants are referred to herein collectively as the "Securities".
NOW, THEREFORE, in consideration of the agreements set forth
herein, the parties agree as follows:
AGREEMENT
1. PURCHASE OF SECURITIES. Purchaser agrees to purchase
the Securities from Seller, and Seller agrees to sell the Securities to
Purchaser.
2. PURCHASE PRICE. The purchase price for the Securities
shall be Two Hundred Seventy Thousand and Five dollars ($270,005) total for all
the Securities.
3. SELLER'S DELIVERY OF SECURITIES; PAYMENT. The closing
(the "Closing") of the purchase and sale of the Securities shall occur at a time
and place mutually agreeable to Seller and Purchaser upon the occurrence of all
of the deliveries referenced in the following sentence, but in no event later
than April 2, 2004 (the "Closing Date"). Neither party shall have any obligation
to proceed to the Closing of this transaction if any litigation is filed seeking
to enjoin or set aside this transaction, or seeking damages in connection
herewith, or if the Closing does not occur by the Closing Date. At the Closing,
(a) Purchaser shall deliver to Seller the Purchase Price by wire transfer of
immediately available funds, and (b) Seller shall deliver to Purchaser an
Assignment Separate From Certificate in the form of Exhibit "A" attached hereto
and incorporated herein, and any other appropriate instruments required to
effectuate Seller's transfer to Purchaser of the Securities and any other
interests of Seller in the Company or its assets (the "Assignment"). The Closing
is contingent upon each and every delivery contemplated by this paragraph 3.
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4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby represents and warrants that:
(a) Seller has the requisite limited liability company
power and authority to execute and deliver this Agreement, the Assignment and
any other documents and instruments to be executed and delivered by Seller
pursuant hereto, and to consummate the transactions contemplated hereby.
(b) Seller has good and valid title to the Securities,
and the Securities are not subject to any liens, claims or encumbrances of any
nature or kind whatsoever, other than restrictions imposed by state or federal
securities laws.
(c) This Agreement and the Assignment, when executed by
Xxxxx X. Xxxx on behalf of Seller, shall constitute valid and legally binding
obligations of Seller, enforceable against Seller in accordance with their
terms, except as may be limited by bankruptcy, insolvency or other similar laws
or general principles of equity.
(d) The execution and delivery of this Agreement and the
Assignment by Seller, and the consummation by Seller of the transactions
contemplated by this Agreement, do not and will not, with the passage of time or
giving of notice or both, constitute a violation of, be in conflict with, or
require any consent under (i) Seller's organizational documents, (ii) any
contract, agreement, commitment, undertaking or understanding to which Seller is
a party or to which Seller or any of Seller's properties are subject or bound,
(iii) any judgment, decree or order of any governmental authority to which
Seller or any of Seller's properties are subject or bound, or (iv) any
applicable law.
(e) Seller has complied with and shall continue to comply
with all of its obligations contained in that certain Pledge Agreement dated as
of September 29, 2000 by and between Xxxxxxx X. XxXxxx Xx. and Seller.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
(a) Purchaser hereby represents and warrants that it has
all requisite corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby and has all power and authority
to execute, deliver and perform this Agreement.
(b) This Agreement, when executed by Xxxx Xxxx on behalf
of Purchaser, shall constitute the valid and legally binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
may be limited by bankruptcy, insolvency or other similar laws or general
principles of equity.
(c) The execution and delivery of this Agreement by
Purchaser, and the consummation by Purchaser of the transactions contemplated by
this Agreement, do not and will not, with the passage of time or giving of
notice or both, constitute a violation of, be in conflict with, or require any
consent under (i) Purchaser's organizational documents, (ii) any contract,
agreement, commitment, undertaking or understanding to which Purchaser is a
party or to which Purchaser or any of Purchaser's properties are subject or
bound, (iii) any judgment, decree or
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order of any governmental authority to which Purchaser or any of Purchaser's
properties are subject or bound, or (iv) any applicable law.
6. INDEMNITY. Each party (an "Indemnitor") shall
protect, defend, indemnify and hold harmless the other party and its successors
and assigns, its officers and directors and their successors, from and against
any and all claims, actions and suits, and from and against and in respect of
any and all liabilities, losses, damages, costs, attorneys' fees, or other
liabilities and expenses which may be suffered or incurred by such persons by
reason of or as a result of the breach of any of such Indemnitor's
representations and warranties in this Agreement.
7. FURTHER ASSURANCES. Purchaser and Seller each agree
to take such actions reasonably requested by the other, including the execution
of documents, as necessary to complete the transactions contemplated by this
Agreement.
8. BINDING EFFECT. This Agreement shall be binding upon
and enforceable by, and shall inure to the benefit of, the parties hereto and
their respective successors and assigns.
9. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, without
regard to its conflict of law rules to the extent such rules would apply the law
of another jurisdiction.
10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts (which may be facsimile copies), each of which shall be
deemed an original, but all of which, together shall constitute one and the same
instrument.
11. ATTORNEYS' FEES. In the event of any litigation
arising out of this Agreement, the party who is determined to be the prevailing
party shall be entitled to recover from the other party its attorneys' fees and
costs of suit incurred in such action.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first set forth above.
GBV Tri-Power Fund, LLC THE RICEX COMPANY
a California limited liability company a Delaware corporation
("Seller") ("Purchaser")
By: /s/ XXXXX X. XXXX By: /s/ XXXX XXXX
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Title: Xxxxx X. Xxxx, CFO Title: RICEX CFO
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, GBV Tri-Power Fund, LLC, a California limited
liability company ("Assignor") hereby sells, assigns and transfers unto THE
RICEX COMPANY ("Assignee"), One Million Three Hundred Forty-Six Thousand Nine
Hundred Sixty-four (1,346,964) Class I warrants (the "Class I Warrants") to
purchase an equivalent number of shares of common stock of The RiceX Company,
Six Hundred Seventy-three Thousand Four Hundred Eighty-two (673,482) Class II
warrants (the "Class II Warrants") to purchase an equivalent number of shares of
common stock of The RiceX Company, and One Million Ten Thousand Two Hundred
Twenty-three (1,010,223) Class III warrants (the "Class III Warrants" and,
together with the Shares, the Class I Warrants and the Class II Warrants,
collectively the "Securities") to purchase an equivalent number of shares of
common stock of The RiceX Company, and together with all other tangible and
intangible assets and interests Assignor has in The RiceX Company, which
Securities stand in Assignor's name on the books and records of said company,
and Assignor does hereby irrevocably constitute and appoint the Secretary of The
RiceX Company as attorney-in-fact to transfer such securities on the books and
records of The RiceX Company with full power of substitution in the premises.
This Assignment Separate from Certificate has been executed pursuant to that
certain Stock Transfer Agreement by and between Assignor and Assignee dated as
of even date herewith, and is subject to the terms and conditions contained
therein.
Dated: April 2, 2004 GBV TRI-POWER FUND, LLC
a California limited liability company
By: /s/ XXXXX X. XXXX
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Title: Xxxxx X. Xxxx, CFO
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