RESALE RESTRICTION AGREEMENT
Exhibit
10.48
THIS
RESALE RESTRICTION AGREEMENT (the “Agreement”)
is
made and entered into as of October 4, 2005, by and among NutraCea, a California
corporation and <Name> (“Shareholder”).
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement (as defined below). The obligations
of
the parties hereto shall be effective as of the Effective Time.
NutraCea
and Shareholder agree as follows:
1. Background
and Purpose.
NutraCea, Red Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of NutraCea (“Merger
Sub”),
and
The RiceX Company, a Delaware corporation (“RiceX”),
are
parties to that certain Agreement and Plan of Merger and Reorganization
(“Merger
Agreement”)
dated
as of April 4, 2005, which provides for the merger (“Merger”)
of
Merger Sub into RiceX and for RiceX to thereafter be a wholly-owned subsidiary
of NutraCea. Shareholder is the holder of shares of RiceX common stock and/or
options to purchase shares of RiceX common stock and accordingly will receive
significant consideration pursuant to the terms of the Merger Agreement. As
a
condition to the Merger, the Merger Agreement contemplates, among other things,
that Shareholder will enter into this Resale Restriction Agreement
(“Agreement”).
2. Resale
Restriction.
Shareholder agrees that, without the express prior written consent of NutraCea’s
Chief Executive Officer acting on behalf of NutraCea, Shareholder will not
offer, sell, make any short sale of, loan, encumber, grant any option for the
purchase of, or otherwise dispose of (the “Resale
Restrictions”),
any
securities of the NutraCea beneficially owned or otherwise held by Shareholder
as of the date of this Agreement or hereafter acquired by Shareholder
(collectively, the “Shares”)
for a
period of three (3) years after the Effective Time (the “Lock-up
Period”).
The
foregoing Resale Restrictions are expressly agreed to preclude the holder of
the
Shares from engaging in any hedging or other transaction which may lead to
or
result in a sale of Shares during the Lock-up Period even if such Shares would
be sold by someone other than Shareholder. Such prohibited hedging or other
transactions would include without limitation any short sale, any pledge or
any
purchase, sale or grant of any right (including without limitation any put
or
call option) with respect to any of the Shares. The Resale Restrictions shall
apply regardless of whether Shareholder is an employee of NutraCea.
3. Permitted
Transfers to Family Members.
Notwithstanding the provisions of Section 2 above, Shareholder may transfer
(subject to the terms of any option or warrant agreement) any or all of the
Shares either during Shareholder’s lifetime or on death by will or intestacy to
Shareholder’s immediate family or to a trust the beneficiaries of which are
exclusively Shareholder and/or a member or members of Shareholder’s immediate
family; provided,
however,
that in
any such case it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
Shares subject to the provisions of this Agreement, and there shall be no
further transfer of such Shares except in accordance with this Agreement. For
purposes of this Agreement, “immediate family” shall mean spouse, lineal
descendant, father, mother, brother or sister of the transferor.
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4. Stock
Transfer Instructions.
Shareholder agrees and consents to the entry of stop transfer instructions
with
the transfer agent for NutraCea’s common stock against any transfer of shares of
NutraCea’s common stock by Shareholder in contravention of the Resale
Restrictions.
5. Restrictive
Legends.
The
certificates representing the Shares shall be marked with restrictive legends
as
follows:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
UPON
TRANSFER AS SET FORTH IN AN AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED
HOLDER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
CORPORATION
6. Miscellaneous.
6.1. Entire
Agreement.
This
Agreement, the Merger Agreement and the documents attached thereto or hereto
as
exhibits constitute the entire agreement between the parties, all oral
agreements being merged herein, and supersede all prior representations. There
are no representations, agreements, arrangements, or understandings, oral or
written, between or among the parties relating to the subject matter of this
Agreement that are not fully expressed herein and therein.
6.2. Amendment.
This
Agreement may be amended by the parties hereto at any time by execution of
an
instrument in writing signed on behalf of each of the parties
hereto.
6.3. Waiver.
Any
waiver of the terms or conditions of this Agreement may be waived at any time
by
the party entitled to the benefit thereof, but no such waiver shall affect
or
impair the right of the waiving party to require observance, performance or
satisfaction either of that term or condition as it applies on a subsequent
occasion or of any other term or condition.
6.4. Nonassignability.
This
Agreement shall not be assigned by Shareholder without the prior written consent
of NutraCea. Any assignment contrary to the provisions of this Agreement shall
be deemed a default under this Agreement, allowing NutraCea to exercise all
remedies available under law.
6.5. Succession.
Subject
to the provisions otherwise contained in this Agreement, this Agreement shall
inure to the benefit of and be binding on successors and assigns of the
respective parties.
6.6. Notices.
Any
notice under this Agreement shall be in writing, and any written notice or
other
document shall be deemed to have been duly given (i) on the date of personal
service on the parties, (ii) on the third business day after mailing, if the
document is mailed by registered or certified mail, (iii) one day after being
sent by professional or overnight courier service or messenger service
guaranteeing one-day delivery, with receipt confirmed by the courier, or (iv)
on
the date of transmission by telegram, telex, telecopy or other means of
electronic transmission resulting in written copies, with receipt confirmed.
Any
such notice shall be delivered or addressed to the parties at the addresses
set
forth below or at the most recent address specified by the addressee through
written notice under this provision. Failure to conform to the requirement
that
mailings be done by registered or certified mail shall not defeat the
effectiveness of notice actually received by the addressee.
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6.7. Attorneys’
Fees; Prejudgment Interest.
If the
services of an attorney are required by any party to secure the performance
of
this Agreement or otherwise upon the breach or default of another party to
this
Agreement, or if any judicial remedy or arbitration is necessary to enforce
or
interpret any provision of this Agreement or the rights and duties of any person
in relation thereto, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and other expenses, in addition to any other relief to
which such party may be entitled. Any award of damages following judicial remedy
or arbitration as a result of the breach of this Agreement or any of its
provisions shall include an award of prejudgment interest from the date of
the
breach at the maximum amount of interest allowed by law.
6.8. Counterparts.
This
Agreement may be executed in any number of counterparts with the same effect
as
if the parties had all signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
6.9. Captions.
All
paragraph captions are for reference only and shall not be considered in
construing this Agreement.
6.10. Severability.
If any
provision of Agreement is held by a court of competent jurisdiction to be
invalid or enforceable, the remainder of the Agreement which can be given effect
without the invalid provision shall continue in full force and effect and shall
in no way be impaired or invalidated.
6.11. Governing
Law.
The
rights and obligations of the parties and the interpretation and performance
of
this Agreement shall be governed by the law of California, excluding its
conflict of laws rules.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
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NUTRACEA
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SHAREHOLDER
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Xxxxxxx
Xxxxx, President
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<Name>
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Address:
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NutraCea
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Address:
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c/o
The RiceX Company
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1261
Hawks’ Flight Court
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1241
Hawk’s Flight Court
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El
Dorado Hills, CA 95762
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Xx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
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Facsimile:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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