AMENDMENT NO. 1
TO
SHAREHOLDER'S AGREEMENT
This Amendment No. 1 (the "Amendment") to the Shareholder's Agreement dated
March 19, 1997 (the "Shareholder's Agreement"), is made as of January 15, 1999,
by and among The RiceX Company, a Delaware corporation (formerly known as Food
Extrusion, Inc.) (the "Company") and of CF Corporation, an Idaho corporation
(the "Shareholder") formerly known as Centennial Foods, Inc.
RECITALS
A. The Company and the Shareholder entered into the Shareholder's
Agreement in satisfaction of a condition to the obligations under the Asset
Purchase Agreement dated as of January 2, 1997 between the Company, Food
Extrusion Montana, Inc., a Montana corporation and wholly-owned subsidiary of
the Company ("FoodEx MT") and the Shareholder (the "Asset Purchase Agreement").
B. As an inducement to and as a condition of, the parties entering
into the Asset Purchase Agreement, the Company granted the Shareholder a put to
sell the 310,000 shares of common stock of the Company issued to the Shareholder
pursuant to the terms of the Asset Purchase Agreement.
C. The parties desire to amend the terms and conditions of the Put
as set forth herein and provide for additional consideration to enter into this
Amendment, including the agreement by the Company to pay the sum of $1,289,000
to the creditors of the Shareholder.
D. Unless otherwise specified herein, all capitalized terms shall
have the meanings provided in the Shareholder's Agreement, which meanings are
hereby incorporated herein by reference.
In consideration of these premises and of the mutual promises
contained in this Amendment and in the Shareholder's Agreement, the parties
hereby agree as follows:
1. SECTION 1. Section 1 of the Shareholder's Agreement is amended and
restated in its entirety as follows:
1. ISSUANCE OF SHARES AND TRANSFER OF TRADEMARKS/PATENTS.
On the Closing Date (as defined in the Asset Purchase Agreement), the
Company shall issue an aggregate of 310,000 shares of common stock of the
Company to the Shareholder. The Shares shall be issued pursuant to the exemption
from registration set forth in Section 3(a)(10) of the Securities Act of 1933,
as amended (the "Act") and shall be subject to the restrictions on transfer in
Sections 4 and 7 below.
Within five business days of signing of this Amendment, the Company
shall issue an aggregate of 100,000 shares of common stock of the Company (the
"Additional Shares") to the Shareholder and upon signing this Amendment, shall
enter into a Registration Rights Agreement substantially in the form attached
hereto as Exhibit A.
As additional consideration for the issuance of Additional Shares to
the Shareholder and the Put (as defined below), the Shareholder hereby
irrevocably and forever assigns, grants and conveys, free and clear of any and
all liens, claims or other encumbrances, all right, title and interest in and to
Patent No. 5,512,287 to Beta Glucan and the Trademark No. 75-045125 for Mirachol
and all proprietary rights therein, (the Trademark and Patent together, the
"Intellectual Property"), and the Company hereby accepts such assignment to the
Company pursuant to the terms and conditions below. The Shareholder hereby
agrees to execute such instruments as may be required to convey to the Company
the Trademark and Patent and all proprietary rights therein.
The Shareholder hereby represents and warrants the following as of the
date of this Agreement:
(a) The Shareholder is the sole and exclusive owner of the
Intellectual Property; no other persons can or will claim ownership of the
Intellectual Property or a shop right or other interest in or to the
Intellectual Property, and the Shareholder has not entered into any agreement
which would diminish, alter or in any way modify the full and complete right,
title and interest being conveyed to the Company.
(b) The Intellectual Property has not been revealed or disclosed to
anyone by the Shareholder, except under a confidential undertaking evidenced by
a written confidentiality or non-disclosure agreement, and the Shareholder has
not publicly used, sold or offered to sell the Intellectual Property or any
device that embodies the Intellectual Property.
(c) The Shareholder has not filed, or caused to be filed,
application(s) for patents or obtained in his name, or caused to be obtained in
the name of others, any patents in the United States or elsewhere based in or
covering the Intellectual Property.
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(d) As of the Effective Date, the Shareholder has full, good and
marketable title to the Intellectual Property, which Intellectual Property is
free and clear of all liens, security interests, mortgages, adverse claims,
licenses or any other such encumbrances whatsoever (collectively,
"Encumbrances"). The Shareholder's right, title and interest to the Intellectual
Property are freely transferable without obtaining the consent or approval of
any other person or party.
(e) No action, suit or proceeding before any court or any
governmental body or authority has been instituted or, to the knowledge of the
Shareholder, threatened that relates in any manner to the Intellectual Property
or any portion thereof.
(f) The Intellectual Property does not infringe the intellectual
property rights of any third parties.
2. SECTION 2. Section 2 of the Shareholder's Agreement is amended and
restated in its entirety as follows:
2. PUT.
2.1 THE PUT. The Company hereby irrevocably grants and issues to
Shareholder the right and option to sell to the Company on July 1, 1999
(hereinafter referred to as the "Put") any or all of the Shares for the
consideration set forth in Section 2.3; PROVIDED, HOWEVER, that if the Company's
common stock closes at or above $5.00 (subject to adjustment under Section 6
below) (the "Termination Value") on the OTC Bulletin Board for ten (10)
consecutive trading days at any time between the date of this Amendment and on
or before July 1, 1999, the Put shall immediately terminate and be of no force
and effect without further notice or action. The right of the Shareholder to
exercise the Put under this Section 2 is not transferable.
2.2 EXERCISE OF PUT. The Shareholder may exercise the Put and sell
to the Company any or all of the Shares on July 1, 1999, and the Company agrees
to purchase such number of shares put to the Company and issue shares of common
stock of the Company in accordance with this Section 2.3 with respect to all of
the Shares put to the Company on such date (the "Exercise Date"). The
Shareholder shall exercise the Put on the Exercise Date by delivery of a written
notice prior to July 1, 1999 to the Company specifying the number of Shares as
to which the Put shall be exercised and delivery to the Company of a stock
certificate or certificates representing the total number of Shares being put
and purchased, duly endorsed in blank by the Shareholder or having attached
thereto a stock power duly executed by the Shareholder in proper form for
transfer.
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2.3 PAYMENT AND DELIVERY OF SHARES. The Company shall, within twenty
(20) calendar days after July 1, 1999, issue shares of common stock of the
Company to such Shareholder with in an amount equal to the following formula
(the "Put Shares"):
X = Remaining Debt
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T
Where X equals the number of shares of common stock of the Company to be issued
to the Shareholder upon exercise of the Put within twenty days following July 1,
1999, the Remaining Debt represents the amount of $1,550,000 less any amounts
recovered by Shareholder through the sale of any Shares and T represents the
average closing price of the Company's common stock on the OTC Bulletin Board
for the period from June 1, 1999 to June 30, 1999.
2.4 ACCELERATION OF THE PUT. The Company, in its sole discretion,
may accelerate and pay the Put upon written notice to the Shareholder. Upon
such acceleration, under Section 2.3, T shall represent the average closing
price of the Company's common stock on the OTC Bulletin Board for the thirty
days preceding the date of the written acceleration notice and the Company shall
be required to issue the Put Shares under Section 2.3 and certificates
representing the Put Shares within twenty (20) calendar days after the date of
the written acceleration notice. The Shareholder shall immediately surrender
the certificates representing the Shares to the Company as provided under
Section 2.2 upon receipt of the written acceleration notice duly endorsed in
blank by the Shareholder or having attached thereto a stock power duly executed
by the Shareholder in proper form for transfer.
2.5 ISSUANCE OF NEW CLASS OF SHARES. The Company agrees that until
the earlier of (i) the automatic termination of the Put under Section 2.1 above,
(ii) the payment of the Put Shares under Section 2.4 and (ii) July 1, 1999, the
Company shall not issue any class of stock, other than common stock, without the
prior written consent of the Shareholder, which consent shall not be
unreasonably withheld.
3. SECTION 6. Section 6 of the Shareholder's Agreement is amended and
restated in its entirety as follows:
6. ADJUSTMENT TO TERMINATION VALUE AND RIGHT OF FIRST REFUSAL PRICE.
In the event the Company at any time or from time to time shall declare or
pay any dividend on the common stock payable in common stock, or effect a
subdivision or consolidation of the outstanding shares of common stock into a
greater or lesser number of shares of common stock, then and in any such event,
in the case of any such dividend, immediately after the close of business on the
record date for the determination of holders of any class of securities entitled
to receive such dividend, or in the case of any such subdivision, at the close
of
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business on the date immediately prior to the date upon which such
corporate action becomes effective, the Termination Value and Right of First
Refusal Price shall be proportionately adjusted. Additionally, if, from time
to time during the term of this Agreement: (i) there is any stock dividend,
distribution or dividend of cash or property, stock split, or other change in
the character or amount of any of the outstanding securities of the Company;
or (ii) there is any consolidation, merger or sale of all, or substantially
all, of the assets of the Company; then in such event, any and all new,
substituted or additional securities, cash, or other property to which the
Shareholder is entitled by reason of his or her ownership of the Shares shall
be included in the word "Shares" for all purposes with the same force and
effect as the Shares presently subject to the Right of First Refusal and
other terms of this Agreement. The Termination Value and Right of First
Refusal Price per share shall be appropriately adjusted.
4. SECTION 7. Section 7.1 shall be amended to add the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE OFFERED, SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933 AND QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS, UNLESS AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED THAT SUCH REGISTRATION AND
QUALIFICATION IS NOT REQUIRED.
5. SECTION 9.9. A Section 9.9 shall be added as follows:
9.9 INVESTMENT REPRESENTATIONS. This Amendment is made with the
Shareholder in reliance on the following specific representations to the Company
that:
(a) The Additional Shares and Put Shares, when and if issued,
purchased and issued hereunder will be acquired for the Shareholder's own
account, not as a nominee or agent, and not with a view to the distribution of
any part thereof, and the Shareholder has no present intention of selling,
granting participation in, or otherwise distributing the same. The Shareholder
has not been organized for the purpose of investing in securities of the
Company, although such investment is consistent with its purposes.
(b) The Shareholder understands that the purchase of the Additional
Shares and Put Shares, when and if issued, represents a speculative investment,
and the Shareholder is able, without impairing its financial condition, to hold
the Additional Shares, and Put Shares, for an indefinite period of time and to
suffer a complete loss of the Shareholder's investment. The Shareholder is
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aware of and has investigated the Company's business, management and financial
condition, has had the opportunity to inspect the Company's facilities and has
had access to such other information about the Company as the Shareholder has
deemed necessary or desirable to reach an informed and knowledgeable decision to
acquire the Additional Shares and Put Shares.
(c) The Shareholder understands, except as set forth in the
Registration Rights Agreement, that the Additional Shares and Put Shares will
not be registered under the Act by reason of, among other things, reliance upon
certain exemptions therefrom, and that the reliance of the Company on such
exemptions is predicated upon, among other things, the bona fide nature of the
Shareholder's investment intent as expressed herein.
(d) The Shareholder is experienced in evaluating and investing in
securities of companies in the development stage and has made investments in
securities other than those of the Company. The Shareholder acknowledges that by
reason of its business or financial experience, it has the ability to bear the
economic risk of its investment pursuant to this Agreement.
(e) RULE 144. The Shareholder understands that the Additional Shares
and Put Shares are restricted securities within the meaning of Rule 144 under
the Act; that, although the Additional Shares and Put Shares are subject to
certain registration rights hereunder, until such registration is effective such
securities are not registered and must be held indefinitely unless they are
subsequently registered or an exemption from such registration is available;
that, in any event, the exemption from registration under Rule 144 will not be
available for at least one year, and even then will not be available unless: (i)
a public trading market then exists for the Additional Shares and Put Shares;
(ii) adequate information concerning the Company is then available to the
public; and (iii) other terms and conditions of Rule 144 are complied with,
including, among other things, the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a "market
maker" and the number of shares being sold in any three-month period shall not
exceed specified limitations; and that any sale of such securities may be made
by the Shareholder only in limited amounts in accordance with such terms and
conditions if the Shareholder is an affiliate of the Company or has held such
securities less than two years.
(f) INDEPENDENT INVESTIGATION. The Shareholder has had a reasonable
opportunity to ask questions of and receive answers from the Company concerning
the Company and the purchase hereunder, and all such questions, if any, have
been answered to the full satisfaction of the undersigned. In making its
investment decision to purchase the Additional Shares and Put Shares, the
Shareholder is not relying on any oral or written representations or assurances
from the Company or any other person other than as set forth in this Agreement
or in a document executed by a duly authorized representative of the Company
making reference to this Agreement. The Shareholder has such
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experience in business and financial matters that it is capable of evaluating
the risk of its investment and determining the suitability of its investment. By
reason of each of the Shareholder's business or financial experience or the
business or financial experience of each of the Shareholder's professional
advisors, has the capacity to protect its own interest in connection with this
purchase.
(g) ECONOMIC RISK. The Shareholder understands and acknowledges that
an investment in the Additional Shares and Put Shares involves a high degree of
risk, including a possible total loss of investment. The Shareholder represents
that the Shareholder is able to bear the economic risk of an investment in the
Additional Shares and Put Shares. In making this statement, the Shareholder
hereby represents and warrants that the Shareholder has adequate means of
providing for the Shareholder's current needs and contingencies and the
Shareholder is able to afford to hold the Additional Shares and Put Shares for
an indefinite period.
(h) NO GOVERNMENT RECOMMENDATION OR APPROVAL. The Shareholder
understands that no United States federal or state agency or similar agency of
any other country has passed upon or made any recommendation or endorsement of
the Company, this transaction or the purchase of the Additional Shares and Put
Shares.
(i) RELIANCE ON REPRESENTATION. This Agreement is made by the
Company with each of the Shareholder in reliance upon the Shareholder's
representations, warranties and covenants made in this Section 9.9.
(j) NO REGISTRATION. The Shareholder understands that the Additional
Shares and Put Shares have not been registered under the Act and are being
offered and sold pursuant to an exemption from registration contained in the
Act, which is based, in part, upon the representations of the Shareholder
contained herein.
(k) NO PUBLIC SOLICITATION. The Shareholder knows of no public
solicitation or advertisement of an offer in connection with the proposed sale
of the Additional Shares and Put Shares.
(l) INVESTMENT INTENT. The Shareholder represents and warrants to
the Company that the Shareholder has no present plan or intention of selling the
Additional Shares or Put Shares, has made no predetermined arrangements to sell
the Additional Shares or Put Shares that the purchase and sale hereunder,
together with any subsequent resale of the Additional Shares or Put Shares, is
not part of a plan or scheme to evade the registration provisions of the Act.
(m) NO SALE IN VIOLATION OF THE ACT. The Shareholder further
covenants that the Shareholder will not make any sale, transfer or other
disposition of the Additional Shares or Put Shares in violation of the Act, the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the rules
and regulations of the Securities and Exchange Commission (the "Commission")
promulgated thereunder.
(n) NO RELIANCE ON TAX ADVICE. The Shareholder has reviewed with its
own tax advisors the foreign, federal, state and local tax consequences of this
investment, where applicable, and the transactions contemplated by this
Agreement. The Shareholder is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents and
understands that the Shareholder (and not the Company) shall be responsible for
the Shareholder's own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
(o) INDEPENDENT LEGAL ADVICE. The Shareholder acknowledges that the
Shareholder has had the opportunity to review this Agreement and the
transactions contemplated by this Agreement with its own legal counsel. The
Shareholder is relying solely on such counsel and not on any statements or
representations of the Company or any of its agents for legal advice with
respect to this investment or the transactions contemplated by this Agreement.
(p) NOT AN AFFILIATE. The Shareholder is not an officer, director or
"Affiliate" (as the term is defined in Rule 405 and Rule 501(b) of the Act) of
the Company.
(q) TRANSFER RESTRICTIONS. The Shareholder agrees that the Company
may instruct the transfer agent for the Company's common stock to not register
the transfer of the Additional Shares or Put Shares unless the restrictions
referenced in the legend in Section 7.1 have been satisfied.
6. DEFINITIONS. The defined terms in the Shareholder's Agreement, Asset
Purchase Agreement and other related agreements shall include the terms as
defined herein to the extent appropriate or necessary; for example, the term
"FoodEx" shall also include the "Company."
7. AFFECT OF AMENDMENT. Except as otherwise modified hereby, the terms
of the Shareholder's Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
above written date.
COMPANY: The RiceX Company
By: /s/ X. X. XxXxxx
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Name: Xxxxxx X. XxXxxx
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Title: CFO/COB
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THE SHAREHOLDER: CF Corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: President & CEO
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