EXHIBIT 4.53
THIS OPTION HAS BEEN ISSUED PURSUANT TO EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND THE
QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS (THE "LAWS").
IT IS UNLAWFUL TO EXERCISE, SELL, PLEDGE OR OTHERWISE DISPOSE OF THIS OPTION,
OR ANY INTEREST THEREIN, OR RECEIVE ANY CONSIDERATION THEREFOR, IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
QUALIFICATION UNDER THE LAWS, UNLESS EXEMPTIONS FROM SUCH REGISTRATION AND
QUALIFICATION REQUIREMENTS ARE AVAILABLE.
THIS OPTION MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS OF THIS STOCK
OPTION AGREEMENT.
THE RICEX COMPANY
NONSTATUTORY STOCK OPTION AGREEMENT
The RiceX Company, a Delaware corporation (the "Company"),
hereby grants to Xxx Xxxxx (the "Optionee"), an option (the "Option") to
purchase a total of 900,000 shares of Common Stock, par value $.001, of the
Company (the "Common Stock") at an exercise price (the "Exercise Price")
equal to $.72 per share, which is equal to the fair market value of the
Company's Common Stock on the date of the grant, in all respects subject to
the terms, definitions and provisions of this Non-Statutory Stock Option
Agreement (the "Agreement").
1. NATURE OF THE OPTION. The Option is intended to be a
nonstatutory option and NOT an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. PAYMENT OF EXERCISE PRICE.
(a) METHOD OF PAYMENT. Payment of the Exercise
Price for shares purchased upon exercise of the Option shall be made (i) by
delivery to the Company of cash or a check to the order of the Company in an
amount equal to the purchase price of such shares; (ii) subject to the
consent of the Company, by delivery to the Company of shares of Common Stock
of the Company then owned by the Optionee having a fair market value equal in
amount to the purchase price of such shares in accordance with Section 2(b);
(iii) a note to the Company evidenced by proper form and security, or by any
other means approved by the Board of Directors and which is consistent with
applicable laws and regulations (including, without limitation, the
provisions of Rule 16b-3 under the Securities Exchange Act of 1934 and
Regulation T promulgated by the Federal Reserve Board); or (iv) by any
combination of such methods of payment.
(b) METHOD OF PAYMENT-PUBLIC MARKET. In the event
there exists a public market for the Company's Common Stock on the date of
exercise, payment of the exercise price may be made by surrender of shares of
the Company's Common Stock. In this case payment shall be made as follows:
(i) Optionee shall deliver to the
Secretary of the Company a written notice which shall set forth the portion
of the purchase price the Optionee wishes to pay with Common Stock, and the
number of shares of such Common Stock the Optionee intends to surrender
pursuant to the exercise of this Option, which shall be determined by
dividing the aforementioned portion of the purchase price by the average of
the last reported bid and asked prices per share of Common Stock of the
Company, as reported in THE WALL STREET JOURNAL (or, if not so reported, as
otherwise reported by the National Association of Securities Dealers
automated Quotation (NASDAQ) System or, in the event the Common Stock is
listed on a national securities exchange, or on the NASDAQ Small-Cap Market
of any successor national market system, the closing price of Common Stock of
the Company on such exchange as reported in THE WALL STREET JOURNAL) for the
day on which the notice of exercise is sent or delivered.
(ii) Fractional shares shall be
disregarded and the Optionee shall pay in cash an amount equal to such
fraction multiplied by the price determined under subparagraph (I) above;
(iii) The written notice shall be
accompanied by a duly endorsed blank stock power with respect to the number
of Shares set forth in the notice, and the certificate(s) representing said
Shares shall be delivered to the Company at its principal offices within
three (3) working days from the date of the notice of exercise;
(iv) The Optionee hereby authorizes and
directs the Secretary of the Company to transfer so many of the Shares
represented by such Certificate(s) as are necessary to pay the purchase price
in accordance with the provisions herein;
(v) If any such transfer of Shares
requires the consent of the California Commissioner of Corporations or of
some other agency under the securities laws of any other state, or an opinion
of counsel for the Company or Optionee that such transfer may be effected
under applicable Federal and state securities laws, the time periods
specified herein shall be extended for such periods as the necessary request
for consent to transfer is pending before said Commissioner or other agency,
or until counsel renders such an opinion, as the case may be. All parties
agree to cooperate in making such request for transfer, or in obtaining such
opinion of counsel, and no transfer shall be effected without such consent or
opinion if required by law; and
(vi) Notwithstanding and other provisions
herein, the Optionee shall only be permitted to pay the purchase price with
shares of the Company's Common Stock owned by him as of the exercise date in
the manner and within the time periods allowed under Rule 16b-3 promulgated
under the Securities Exchange Act of 1934 as such regulation is presently
constituted, as it is amended from time to time, and as it is interpreted now
or hereafter by the Securities and Exchange Commission and any such shares
have been held by the Optionee for not less than six (6) months.
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3. EXERCISE OF OPTION. The Option shall vest and become
exercisable during its term, subject to the provisions of Section 5 below, as
follows:
(a) VESTING AND RIGHT TO EXERCISE.
(i) The Option hereby granted shall vest
and become exercisable with respect to 500,000 Shares of the Option on
November 1, 1999, and shall vest and become exercisable with respect to the
remaining 400,000 of the Shares subject to the Option on May 1, 2000. Subject
to the provisions of subparagraph (ii) and (iii) below, the Optionee can
exercise any portion of the Option, which has vested until the expiration of
the Option term.
If there should occur a "change of control" of the Company, as defined below,
then the Option shall immediately vest and become exercisable in full. For
purposes of the foregoing provision, a "change in control" means the
occurrence of any of the following:
(A) any "person", as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the Company or its existing
shareholders) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
(or a successor to the Company) representing 50% or more of the combined
voting power of the then outstanding securities of the Company or such
successor;
(B) the dissolution of the
Company or liquidation of more than 50% or more in value of the assets of the
Company, (ii) or any merger or reorganization of the company whether or not
another entity is the survivor, (iii) a transaction (other than the initial
public offering of Company's shares) pursuant to which holders, as a group,
of all of the shares of the Company outstanding before the transaction, hold,
as a group, less than 50% of the combined voting power of the Company or any
successor company outstanding after the transaction, or (iv) any other event
or series of events which the Committee determines, in its discretion, would
materially alter the structure of the Company or its ownership.
(ii) In the event of the Optionee's
death, disability or other termination of employment prior to exercise, the
exercisability of the Option shall be governed by Section 5 below.
(iii) The Option may be exercised in
whole or in part but may not be exercised as to fractional shares.
(b) METHOD OF EXERCISE. In order to exercise any
portion of the Option, the Optionee shall execute and deliver to the Chief
Financial Officer of the Company, the Notice of Exercise of Stock Option in
the form attached hereto as Exhibit A, together with the Consent of Spouse.
The Notice of Exercise must be accompanied by payment in full of the
aggregate purchase price for the Shares to be purchased in the type of
consideration set forth in Section 2. The Notice of Exercise may be delivered
to the Company at any time. The
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certificate(s) for the Shares as to which the Option has been exercised shall
be registered in the name of Optionee or his designee.
(c) RESTRICTIONS ON EXERCISE. This Option may not
be exercised if the issuance of the shares upon such exercise or the method
of payment of consideration for such shares would constitute a violation of
any applicable Federal or state securities law or any other law or
regulation. As a condition to the exercise of the Option, the Company may
require the Optionee to make any representation or warranty to the Company at
the time of exercise of the Option as in the opinion of legal counsel for the
Company may be required by any applicable law or regulation, including the
execution and delivery of an appropriate representation statement. The stock
certificate(s) for the Shares issued upon exercise of the Option may bear
appropriate legends restricting transfer.
(d) DELIVERY OF CERTIFICATES. The Company shall
deliver the certificate(s) for the Shares issued upon exercise of the Option
to the Director as soon as is practicable; Provided, however, that if any law
or regulation requires the Company to take action with respect to such shares
before the issuance thereof, including, without limitation, actions taken
pursuant to Section 6 below, then the date of delivery of such Shares shall
be extended for a period necessary to take such action.
4. NON-TRANSFERABILITY OF OPTION. This Option may be
exercised during the lifetime of the Optionee only by the Optionee and may
not be transferred in any manner other than by will or by the laws of descent
and distribution. The terms of this Option shall be binding upon the
executors, administrators, heirs and successors of the Optionee.
5. TERM OF THE OPTION. Except as otherwise provided in this
agreement, to the extent not previously exercised, the right to exercise the
Option shall terminate on the tenth (10th) anniversary of the Date of Grant.
Notwithstanding the foregoing, if an Optionee ceases to be an employee of the
Company for any reason, except death and disability, he or she may, but only
within ninety (90) days after the date he or she ceases to be an employee of
the Company, exercise his or her Option to the extent that he or she was
entitled to exercise it at the date of such termination, and in the case of
the Optionee's death or disability, the Optionee (or the Administrator or
Executor or other Representative of the Optionee's Estate) may, but only
within one (1) year after the date he or she ceases to be an employee of the
Company due to death or disability, exercise his or her Option to the extent
that he or she was entitled to exercise it at the date of such termination;
provided, however that in no event may the Option be exercised after its ten
(10) year term has expired. To the extent that the Optionee was not entitled
to exercise an Option at the date of such termination, or if he or she does
not exercise such Option (which he or she was entitled to exercise) within
the time specified herein, the Option shall terminate.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; OTHER
ADJUSTMENTS. Subject to any required action by the shareholders of the
Company, the number of Shares and the Exercise Price shall be proportionately
adjusted for any increase or decrease in the number of issued shares of
common stock resulting from a stock split, reverse stock split, combination,
reclassification, the payment of a stock dividend on the common stock or any
other increase or decrease in the number of shares of Common Stock of the
Company effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities
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of the Company shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except
as expressly provided herein, no issue by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to,
the number of Shares subject to, or the Exercise Price of, this Option.
The Board may, if it so determines in the exercise of
its sole discretion, also make provision for adjusting the number of
Shares, as well as the Exercise Price, in the event that the Company
effects on or more reorganization, recapitalizations, rights offerings,
or other increases or reductions of shares of its outstanding common
stock, and in the event of the Company being consolidated with or
merged into any other corporation; provided, however, that in no event
shall the Optionee be adversely affected by such adjustment.
The Board may, if it so determines in the exercise of
its sole discretion, also make provision for changing, modifying,
amending or adjusting any of the terms of this Option solely in order
for the Company to perfect a significant financing; provided, however,
that in no event shall the Optionee be adversely affected by such
adjustment.
7. RIGHTS OF SHAREHOLDER. Optionee shall have no rights as
a shareholder with respect to the shares until the date of the issuance or
the transfer to the Optionee of the certificate(s) for such Shares and only
after the Exercise Price for such Shares has been paid in full.
8. AMENDMENT. Except as set forth in Section 6, this
Agreement may not be amended without the written consent of the Optionee.
9. INCOME TAX WITHHOLDING. The Optionee authorizes the
Company to withhold, in accordance with applicable law from any compensation
payable to him or her, any taxes required to be withheld by Federal, state or
local laws as a result of the exercise of this Option. Furthermore, in the
event of any determination that the Company has failed to withhold a sum
sufficient to pay all withholding taxes due in connection with the exercise
of this Option, the Optionee agrees to pay the Company the amount of such
deficiency in cash within five (5) days after receiving a written demand from
the Company to do so, whether or not Optionee is an employee or director of
the Company at that time.
10. INVESTMENT REPRESENTATIONS; LEGENDS.
(a) REPRESENTATIONS. The Optionee represents,
warrants and covenants that:
(i) Any shares purchased upon exercise of
this Option shall be acquired for the Optionee's account for investment only,
and not with a view to, or for sale in connection with, any distribution of
the shares in violation of the Securities Act of 1933 (the "Securities Act"),
or any rule or regulation under the Securities Act.
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(ii) The Optionee has had such
opportunity as he or she has deemed adequate to obtain from representatives
of the Company such information as is necessary to permit the Optionee to
evaluate the merits and risks of his or her investment in the Company.
(iii) The Optionee is able to bear the
economic risk of the holding such shares acquired pursuant to the exercise of
this option for an indefinite period.
(iv) The Optionee understands that the
Shares acquired pursuant to the exercise of this option are not registered
under the Securities Act and are "restricted securities" within the meaning
of Rule 144 under the Securities Act and may not be transferred, sold or
otherwise disposed of in the absence of an effective registration statement
with respect to the Shares filed and made effective under the Securities Act
of 1933, or an opinion of counsel satisfactory to the Company to the effect
that registration under such Act is not required.
By making payment upon exercise of this option, the Optionee shall be deemed
to have reaffirmed, as of the date of such payment, the representations made
in this Section10.
(b) LEGENDS OF STOCK CERTIFICATE. All stock
certificates representing shares of Common Stock issued to the Optionee upon
exercise of this option shall have affixed thereto legend(s) substantially in
the following forms, in addition to any other legends required by applicable
state law:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SHARES EVIDENCED BY THIS CERTIFICATE, FILED AND MADE EFFECTIVE
UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION
UNDER SUCH ACT IS NOT REQUIRED".
In witness whereof, the parties have executed this agreement as of November 1,
1999.
THE RICEX COMPANY
By:
-----------------------------------
Xxxxxx XxXxxx, Chairman and CEO
By:
-----------------------------------
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Xxxx Xxxx, Vice President and CFO
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The Optionee acknowledges receipt of a copy of the Plan,
and represents that he or she is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all of the terms and
provisions thereof. The Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board of
Directors of The RiceX Company upon any questions arising under such
Agreement.
Dated:
----------------
OPTIONEE:
---------------------------------
CONSENT OF SPOUSE
I, ___________________________, spouse of the Optionee who
executed the foregoing Agreement attached hereto, hereby agree that my
spouse's interest in the shares of Common Stock of The RiceX Company, subject
to said Agreement shall be irrevocably bound by the Agreement's terms. I
agree to accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors of The RiceX Company upon any
questions arising under such Agreement. I further agree that my community
property interest in such Shares, if any, shall similarly be bound by said
Agreement and that such consent is binding upon my executors, administrators,
heirs and assigns. I agree to execute and deliver such documents as may be
necessary to carry out the intent of said Agreement and this consent.
Dated:
----------------
---------------------------------
Signature
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EXHIBIT 4.53
SCHEDULE OF IDENTICAL DOCUMENTS FILED
Xxxx X. Xxxx
Xxxxxx X. XxXxxx, Xx.
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