REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of May 12, 2006, among NutraCea, a California
corporation (the “Company”),
and
the purchasers signatory hereto (each such purchaser is a “Purchaser”
and
all
such purchasers are, collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
the
date hereof among the Company and the Purchasers (the “Purchase
Agreement”).
The
Company and the Purchasers hereby agree as follows:
1.
Definitions
Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
shall
have the meaning set forth in Section 7(c).
“Effectiveness
Date”
means,
with respect to the initial Registration Statement required to be filed
hereunder, the date which is the 90th
calendar
day following the Closing Date and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the 90th calendar
day
following the date on which the Company first knows, or reasonably should have
known, that such additional Registration Statement is required hereunder;
provided,
however,
in the
event the Company is notified by the Commission that one of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates required above. Notwithstanding the
foregoing, the Effectiveness Date shall be extended an additional thirty (30)
calendar days if the Company receives comments from the Commission with respect
to a Registration Statement or the financial statements contained
therein.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Event”
shall
have the meaning set forth in Section 2(b).
“Event
Date”
shall
have the meaning set forth in Section 2(b).
“Filing
Date”
means,
with respect to the initial Registration Statement required hereunder, the
30th
calendar
day following the Closing Date, and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the 30th
day
following the date on which the Company first knows, or reasonably should have
known that such additional Registration Statement is required
hereunder.
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“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 6(c) hereof.
“Indemnifying
Party”
shall
have the meaning set forth in Section 6(c) hereof.
“Legal
Counsel”
shall
have the meaning set forth in Section 4.
“Losses”
shall
have the meaning set forth in Section 6(a).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened in writing.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, any “free writing prospectus” as defined in Rule 405 under the
Securities Act and all material incorporated by reference or deemed to be
incorporated by reference in any such Prospectus.
“Registrable
Securities”
means,
as of the date in question, (i) all of the shares of Common Stock issuable
upon
conversion in full of the shares of Preferred Stock, (ii) all Warrant Shares
and
(iii) any securities issued or issuable upon any stock split, dividend or other
distribution recapitalization or similar event with respect to the foregoing.
The foregoing Company securities, or any of them, shall cease to be Registrable
Securities upon the earlier to occur of (i) the date on which such securities
have been effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement, (ii) the date on which such
securities have been sold pursuant to Rule 144, or (iii) the date on which
such
securities (together with all other such securities held by the Investor) may
be
sold or transferred pursuant to Rule 144(k) under the Securities Act (or any
other similar provision then in force).
“Registration
Statement”
means
the registration statements required to be filed hereunder and any additional
registration statements contemplated by Section 3(c), including (in each case)
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
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“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
2.
Shelf
Registration
(a)
On
or
prior to each Filing Date, the Company shall prepare and file with the
Commission a “Shelf” Registration Statement covering the resale of the
Registrable Securities on such Filing Date for an offering to be made on a
continuous basis pursuant to Rule 415. The Registration Statement shall be
on
Form SB-2 (or on such other form appropriate for such purpose) and shall contain
(subject to the comments of the Commission) the “Plan
of Distribution”
attached hereto as Annex
A.
Subject
to the terms of this Agreement, the Company shall use its best efforts to cause
the Registration Statement to be declared effective under the Securities Act
as
promptly as possible after the filing thereof at 4:00 p.m. Eastern Time, but
in
any event prior to the applicable Effectiveness Date, and shall use its best
efforts to keep such Registration Statement continuously effective under the
Securities Act until the date which is the earlier of (i) three years after
the
Closing Date, (ii) such time as all of the Registrable Securities covered by
such Registration Statement have been publicly sold, or (iii) such time as
all
Registrable Securities covered by such Registration Statement have been sold
or
may be sold without volume restrictions pursuant to Rule 144(k) as determined
by
the counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent and the affected
Holders (the “Effectiveness
Period”).
The
Company shall notify the Holders via facsimile or e-mail of the effectiveness
of
the Registration Statement within one trading day of the effectiveness of the
Registration Statement.
(b)
If: (i) a Registration Statement is not filed on or prior to its Filing
Date, or (ii) the Company fails to file with the Commission a request for
acceleration in accordance with Rule 461 promulgated under the Securities Act,
within five Trading Days of the date that the Company is notified (orally or
in
writing, whichever is earlier) by the Commission that a Registration Statement
will not be “reviewed,” or not subject to further review, or (iii) prior to its
Effectiveness Date, the Company fails to file a pre-effective amendment and
otherwise respond in writing to comments made by the Commission in respect
of
such Registration Statement within 10 calendar days after the receipt of
comments by or notice from the Commission that such amendment is required in
order for a Registration Statement to be declared effective, unless such delay
is caused by the unavailability of required financial statements, or (iv) a
Registration Statement filed or required to be filed hereunder is not declared
effective by the Commission by its Effectiveness Date, or (v) after the
Effectiveness Date and other than with respect to suspensions allowed pursuant
to Section 3(j) below, a Registration Statement ceases to remain
continuously effective as to all Registrable Securities for which it is required
to be effective, or the Holders are not permitted to utilize
the Prospectus therein to resell such Registrable Securities for 10 consecutive
Trading Days but no more than an aggregate of 20 Trading Days during any
12-month period (which need not be consecutive Trading Days) (any such failure
or breach being referred to as an “Event”, and for purposes of clause (i)
or (iv) the date on which such Event occurs, or for purposes of clause (ii)
the
date on which such five Trading Day period is exceeded, or for purposes of
clause (iii) the date which such 10 calendar day period is exceeded, or for
purposes of clause (v) the date on which such 10 or 20 Trading Day period,
as
applicable, is exceeded being referred to as “Event Date”), then in
addition to any other rights the Holders may have hereunder or under applicable
law, on each such Event Date and on each monthly anniversary of each such Event
Date until the applicable Event is cured, the Company shall pay to each Holder
an amount, as partial liquidated damages and not as a penalty, equal to 2%
of
the aggregate purchase price paid by such Holder pursuant to the Purchase
Agreement for any Registrable Securities then held by such Holder;
provided, however, that in no event will the aggregate amount of
partial liquidated damages paid under this Section to any Holder exceed 10%
of
the aggregate purchase price paid by such Holder. The foregoing liquidated
damages may be paid, at the option of the Holders, in cash or in shares of
the
Company’s common stock. For purposes of this Section 2, the per share value of
the Company’s common stock shall equal the average of the last reported sales
price of the Company’s common stock on the Trading Market for each of the ten
(10) trading days up to and including the first trading day preceding the date
that the payment is due. The partial liquidated damages pursuant to the terms
hereof shall apply on a daily pro-rata basis for any portion of a month prior
to
the cure of an Event. If the Company fails to pay any partial liquidated damages
pursuant to this Section in full within seven calendar days after the date
payable, the Company will pay interest thereon at the rate per annum equal
to
the Prime Rate plus ten percent (10%) (or such lesser maximum amount that is
permitted to be paid by applicable law) to the Holder, accruing daily from
the
date such partial liquidated damages are due until such amounts, plus all such
interest thereon, are paid in full. The partial liquidated damages pursuant
to
the terms hereof shall apply on a daily pro-rata basis for any portion of a
month prior to the cure of an Event.
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(c)
Promptly
following the date (the “Qualification Date”) upon which the Company becomes
eligible to use a registration statement on Form S-3 to register the Registrable
Securities for resale, but in no event more than thirty (30) days after the
Qualification Date (the “Qualification Deadline”), the Company shall file a
registration statement on Form S-3 covering the Registrable Securities or
Additional Shares, as applicable (or a post-effective amendment on Form S-3
to
the registration statement on Form SB-2) (a “Shelf Registration Statement”), and
shall use commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective as promptly as practicable
thereafter.
3.
Registration
Procedures
In
connection with the Company's registration obligations hereunder, the Company
shall:
(a) Not
less
than five Trading Days prior to the filing of each Registration Statement or
any
related Prospectus or any amendment or supplement thereto, the Company shall
furnish to each Holder copies of the “Selling Stockholders” and “Plan of
Distribution” sections of such document, as proposed to be filed, which
documents will be subject to the review of such Holders. The Company shall
not
file the Registration Statement or any such Prospectus or any amendments or
supplements thereto to which any Holder shall reasonably object in good faith,
provided that the Company is notified of such objection, including the substance
of such objection, in writing no later than three Trading Days after the Holders
have been so furnished copies of such documents. Any objection based upon
information supplied by a Holder to the Company shall be deemed unreasonable.
Each Holder agrees to furnish to the Company a completed Questionnaire in the
form attached to this Agreement as Annex B (a “Selling
Holder Questionnaire”)
on or
prior to the Closing Date.
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(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and to the extent any Registrable Securities are not included in such
Registration Statement for reasons other than the failure of the Holder to
comply with Section 7(o) hereof, and prepare and file with the Commission such
additional Registration Statements or post-effective amendments in order to
register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related Prospectus to be amended or supplemented by any required
Prospectus supplement (subject to the terms of this Agreement), and as so
supplemented or amended to be filed pursuant to Rule 424 and otherwise satisfy
the conditions of Rule 172 under the Securities Act; (iii) respond as promptly
as reasonably possible to any comments received from the Commission with respect
to a Registration Statement or any amendment thereto; and (iv) comply in all
material respects with the provisions of the Securities Act and the Exchange
Act
with respect to the disposition of all Registrable Securities covered by a
Registration Statement during the applicable period in accordance (subject
to
the terms of this Agreement) with the intended methods of disposition by the
Holders thereof set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented.
(c) If
during
the Effectiveness Period, the number of Registrable Securities at any time
exceeds the number of shares of Common Stock then registered in a Registration
Statement other than for failure by the Holders to comply with Sections 3(a)
and
7(o), then the Company shall file as soon as reasonably practicable but in
any
case prior to the applicable Filing Date, an additional Registration Statement
covering the resale by the Holders of such additional Registrable
Securities.
(d) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been made, which
notice shall be referred to herein as a “Suspension
Notice”)
as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than
five Trading Days prior to such filing) and (if requested by any such Person
in
writing) confirm such notice in writing no later than one Trading Day following
the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement (the Company shall provide true and complete copies
thereof and all written responses thereto to the each Holder that pertain to
such Holder as a Selling Stockholder or to the Plan of Distribution, but not
information which the Company believes would constitute material and non public
information); and (C) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of
the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of
any
Proceeding for such purpose; (v) of the occurrence of any event or passage
of
time that makes the financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in a Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus,
as
the case may be, it will not contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading; and (vi) the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes
may
be material and that, in the determination of the Company, makes it not in
the
best interest of the Company to allow continued availability of the Registration
Statement or Prospectus; provided that any and all of such information shall
remain confidential to each Holder until such information otherwise becomes
public, unless disclosure by a Holder is required by law; provided,
further,
notwithstanding each Holder’s agreement to keep such information confidential,
the Holders make no acknowledgement that any such information is material,
non-public information.
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(e) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of
(i) any order suspending the effectiveness of a Registration Statement, or
(ii)
any suspension of the qualification (or exemption from qualification) of any
of
the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(f) Upon
request, furnish to each Holder, without charge, at least one conformed copy
of
each such Registration Statement and each amendment thereto and all exhibits
to
the extent requested by such Person (including those previously furnished)
promptly after the filing of such documents with the Commission.
(g) At
any
time when the Company does not satisfy the requirements of Rule 172, promptly
notify each Holder that such Holder must deliver a current Prospectus in
connection with any sale of Registrable Securities and deliver to each Holder,
without charge, as many copies of the Prospectus or Prospectuses (including
each
form of prospectus) and each amendment or supplement thereto as such Persons
may
reasonably request in connection with resales by the Holder of Registrable
Securities. Subject to the terms of this Agreement, the Company hereby consents
to the use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto, except after the giving on any notice pursuant to Section
3(d).
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(h) Prior
to
any public offering of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify (unless
an exemption from the registration or qualification exists) such Registrable
Securities for offer and sale by the Holder under the securities or Blue Sky
laws of such jurisdictions within the United States as any Holder reasonably
requests in writing, to keep each registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all
other
acts or things reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by each Registration
Statement; provided, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or subject
the Company to any material tax in any such jurisdiction where it is not then
so
subject.
(i) If
requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement,
of all restrictive legends, and to enable such Registrable Securities to be
in
such denominations and registered in such names as any such Holders may
request.
(j) Upon
the
occurrence of any event contemplated by Section 3(d)(v), as promptly as
reasonably possible under the circumstances taking into account the Company’s
good faith assessment of any adverse consequences to the Company and its
stockholders of the premature disclosure of such event, prepare a supplement
or
amendment, including a post-effective amendment, to a Registration Statement
or
a supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If
the
Company notifies the Holders in accordance with clauses (ii) through (vi) of
Section 3(d) above to suspend the sale of Registrable Securities until the
requisite changes to such Prospectus have been made, then the Holders shall
suspend such sales. The Company will use its best efforts to ensure that such
sales may be resumed as promptly as is practicable. The Company shall be
entitled to exercise its right under this Section 3(j) to suspend the
availability of a Registration Statement and Prospectus for a period not to
exceed 60 days (which need not be consecutive days) in any 12 month period;
provided, however, if such suspension is not in connection with the review
by
the Commission of a Registration Statement or the financial statements contained
therein, such suspension shall not be for a period exceeding 20 consecutive
days.
(k) Comply
with all applicable rules and regulations of the Commission.
7
(l) The
Company may require each selling Holder to furnish to the Company a separate
certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and the person thereof that has voting and dispositive
control over the Shares, and the status of Holder as, or the affiliation of
Holder with, a broker-dealer. In addition, the Company will require that each
of
the Holders provide complete and accurate information as requested in the
Selling Holder Questionnaire. During any periods that the Company is unable
to
meet its obligations hereunder with respect to the registration of the
Registrable Securities solely because any Holder fails to furnish such
information within two Trading Days of the Company’s request, any liquidated
damages that are accruing at such time as to such Holder only shall be tolled
and any Event that may otherwise occur solely because of such delay shall be
suspended as to such Holder only, until such information is delivered to the
Company.
4.
Legal
Counsel.
The
Buyers holding securities representing at least two-thirds (2/3) of the
Registrable Securities shall have the right to select one legal counsel to
review, on behalf of the Buyers, any registration pursuant to Section 2
(“Legal
Counsel”),
which
shall be Xxxxxxxxxx Xxxxxxx PC, or such other counsel as thereafter designated
in writing to the Company by the holders of at least two-thirds (2/3) of the
Registrable Securities. The Company shall reasonably cooperate with Legal
Counsel in performing the Company’s obligations under this Agreement.
5.
Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The
fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
Trading Market on which the Common Stock is then listed for trading, and (B)
in
compliance with applicable state securities or Blue Sky laws reasonably agreed
to by the Company in writing (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities and determination
of
the eligibility of the Registrable Securities for investment under the laws
of
such jurisdictions as requested by the Holders), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of
prospectuses is reasonably requested by the holders of a majority of the
Registrable Securities included in a Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for
the
Company, (v) Securities Act liability insurance, if the Company so desires
such
insurance and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated
by
this Agreement and fees and expenses of Legal Counsel to the Holders in an
amount not to exceed $5,000. In addition, the Company shall be responsible
for
all of its internal expenses incurred in connection with the consummation of
the
transactions contemplated by this Agreement (including, without limitation,
all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the Company be
responsible for any broker or similar commissions or, except to the extent
provided for in the Transaction Documents, any legal fees or other costs of
the
Holders.
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6.
Indemnification
(a)
Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, agents, investment advisors
and employees of each of them, each Person who controls any such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against
any
and all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable attorneys' fees) and expenses (collectively,
“Losses”),
as
incurred, arising out of or relating to: (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, (2) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, or any other law, including any state,
provincial or foreign securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities pursuant to a
Registration Statement or (3) any material violation of this Agreement by the
Company, except to the extent, but only to the extent, that (i) such untrue
statements or omissions are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for use therein,
or
to the extent that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities and was reviewed
and
expressly approved in writing by such Holder expressly for use in a Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or
supplement thereto (it being understood that the Holder has approved Annex
A
hereto for this purpose) or (ii) in the case of an occurrence of an event of
the
type specified in Section 3(d)(ii)-(vi), the sale of Registrable Securities
after the Company has delivered a Suspension Notice to Holder and prior to
the
receipt by such Holder of the Advice contemplated in Section 7(c); provided,
however, that in connection with any Proceeding in the same jurisdiction, the
Company will not be liable for the reasonable legal fees and expenses of more
than one separate firm of attorneys at any time for all Holder Indemnified
Parties. The Company shall notify the Holders promptly of the institution or
written threat or assertion of any Proceeding of which the Company is aware
pursuant to which indemnification could be required under this Section 6(a).
(b)
Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based
solely upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act after being advised in writing by the Company
that the Company does not satisfy the conditions of Rule 172 and that, therefore
such Holder must deliver a current Prospectus in connection with any sale of
Registrable Securities and after having been provided with a current Prospectus
by the Company, (y) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission
of
a material fact required to be stated therein or necessary to make the
statements therein not misleading to the extent, but only to the extent that
(i)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly for
use
therein, or (ii) such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities and was reviewed
and
expressly approved in writing by such Holder expressly for use in the
Registration Statement (it being understood that the Holder has approved Annex
A
hereto for this purpose), such Prospectus or such form of Prospectus or in
any
amendment or supplement thereto or (z) in the case of an occurrence of an event
of the type specified in Section 3(d)(ii)-(vi), the sale of Registrable
Securities after the Company has delivered a Suspension Notice to Holder and
prior to the receipt by such Holder of the Advice contemplated in Section 7(c).
In no event shall the liability of any selling Holder hereunder be greater
in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
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(c)
Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall be entitled to participate in such
Proceeding and have the right to assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and
the
payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant
to
this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have prejudiced
the
Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall reasonably believe
that a material conflict of interest is likely to exist if the same counsel
were
to represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense thereof and
the reasonable fees and expenses of one separate counsel shall be at the expense
of the Indemnifying Party). The Indemnifying Party shall not be liable for
any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party (which consent shall not
be
unreasonably withheld or delayed), effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from
all
liability on claims that are the subject matter of such Proceeding.
10
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party, which notice shall be delivered no more frequently than
on a
monthly basis; provided, that the Indemnified Party shall promptly reimburse
the
Indemnifying Party for that portion of such fees and expenses applicable to
such
actions for which such Indemnified Party is not entitled to indemnification
hereunder, determined based upon the relative faults of the
parties.
(d)
Contribution.
If a
claim for indemnification under Section 6(a) or 6(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys' or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud
by
such Holder.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
11
7.
Miscellaneous
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(b) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(c) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the
kind
described in Section 3(d), such Holder will forthwith discontinue disposition
of
such Registrable Securities under a Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement, or until it is advised in writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. The Company will use its commercially
reasonable efforts to ensure that the use of the Prospectus may be resumed
as
promptly as it practicable.
(d) No
Piggyback on Registrations.
Except
as set forth on Schedule
7(d)
attached
hereto, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company
in the initial Registration Statement other than the Registrable Securities.
The
Company shall not file any other registration statements other than on Form
S-8
until the initial Registration Statement required hereunder is declared
effective by the Commission, provided that this Section 7(d) shall not prohibit
the Company from filing amendments to registration statements already
filed.
(e) Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with the stock option or other employee benefit plans, then the
Company shall send to each Holder a written notice of such determination and,
if
within five days after the date of such notice, any such Holder shall so request
in writing, the Company shall include in such registration statement all or
any
part of such Registrable Securities such holder requests to be registered,
subject to customary underwriter cutbacks applicable to all holders of
registration rights if such registration statement relates to an underwritten
offering; provided, that, the Company shall not be required to register any
Registrable Securities pursuant to this Section 6(e) that are eligible for
resale pursuant to Rule 144(k) promulgated under the Securities Act or that
are
the subject of a then effective Registration Statement.
12
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the holders of a majority of the Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of Holders and that does not directly or indirectly affect the rights
of
other Holders may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(g) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Purchase Agreement.
(h) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of at least a majority of the Registrable Securities;
provided, however, that the Company may assign its rights and delegate its
duties hereunder to any surviving, acquiring or successor corporation in
connection with a merger or consolidation of the Company with another
corporation, or a sale, transfer or other disposition of all or substantially
all of the Company’s assets to another corporation, or similar transaction,
without the prior written consent of the Holders, after notice duly given by
the
Company to the Holders.. Each Holder may assign their respective rights
hereunder in the manner and to the Persons as permitted under the Purchase
Agreement.
(i) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(j) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined with the provisions of the Purchase
Agreement.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
13
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(n) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered at
any
closing, and no action taken by any Holder pursuant hereto or thereto, shall
be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to
be
joined as an additional party in any proceeding for such purpose.
(o) Holder
Cooperation.
The
Holders shall cooperate with the Company, as reasonably requested by the
Company, in connection with the preparation and filing of any Registration
Statement hereunder. The Company may require a Holder to promptly furnish in
writing to the Company such information as may be required in connection with
such registration including,
without limitation, all
such
information as may be requested by the Commission or the NASD or any state
securities commission and all such information regarding the Holder, the
Registrable Securities held by the Holder and the intended method of disposition
of the Registrable Securities. Each Holder agrees to provide such information
requested in connection with such registration within a reasonable time after
receiving such written request.
Each
Holder shall be responsible for the delivery of the Prospectus to the Persons
to
whom the Holder sells the Registrable Securities after the Company notifies
such
Purchaser that the Company does not satisfy the requirements of Rule 172, and
each Holder agrees to dispose of Registrable Securities in compliance with
the
plan of distribution described in the Registration Statement and otherwise
in
compliance with applicable federal and state securities laws.
********************
14
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
By:
|
/s/ Xxxxxxx Xxxxx | |
|
Name:
Xxxxxxx Xxxxx
|
||
|
Title:
President
|
||
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
15
[PURCHASER’S
SIGNATURE PAGE TO NUTRACEA REGISTRATION RIGHTS AGREEMENT]
Entity
Investors
Name
of
Investing Entity: __________________________
Signature
of Authorized Signatory of Investing Entity:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
Individual
Investors
Name
of
Investing Individual: __________________________
Signature
of Investing Individual:
__________________________
[SIGNATURE
PAGES CONTINUE]
16
ANNEX
A
Plan
of Distribution
Each
Selling Stockholder (the “Selling
Stockholders”)
of the
common stock (“Common
Stock”)
of
NutraCea, a California corporation (the “Company”)
and
any of their pledgees, assignees and successors-in-interest may, from time
to
time, sell any or all of their shares of Common Stock on the Trading Market
or
any other stock exchange, market or trading facility on which the shares are
traded or in private transactions. These sales may be at fixed or negotiated
prices. A Selling Stockholder may use any one or more of the following methods
when selling shares:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| · |
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
| · |
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
| · |
broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
| · |
a
combination of any such methods of
sale;
|
| · |
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
or
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities
Act”),
if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. Each
Selling Stockholder does not expect these commissions and discounts relating
to
its sales of shares to exceed what is customary in the types of transactions
involved.
17
In
connection with the sale of our common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
securities will be paid by the Selling Stockholders and/or the purchasers.
Each
Selling Stockholder has informed the Company that it does not have any agreement
or understanding, directly or indirectly, with any person to distribute the
Common Stock.
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act. In addition, any securities covered by this prospectus
which qualify for sale pursuant to Rule 144 under the Securities Act may be
sold
under Rule 144 rather than under this prospectus. Each Selling Stockholder
has
advised us that they have not entered into any agreements, understandings or
arrangements with any underwriter or broker-dealer regarding the sale of the
resale shares. There is no underwriter or coordinating broker acting in
connection with the proposed sale of the resale shares by the Selling
Stockholders.
We
agreed
to keep this prospectus effective until the earlier of (i) three years after
the
initial sale of the resale shares, (ii) the date on which the shares may be
resold by the Selling Stockholders without registration and without regard
to
any volume limitations by reason of Rule 144(e) under the Securities Act or
any
other rule of similar effect or (iii) all of the shares have been sold pursuant
to the prospectus or Rule 144 under the Securities Act or any other rule of
similar effect. The resale shares will be sold only through registered or
licensed brokers or dealers if required under applicable state securities laws.
In addition, in certain states, the resale shares may not be sold unless they
have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and
is
complied with.
18
Under
applicable rules and regulations under the Exchange Act, any person engaged
in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to our common stock for a period of two business
days prior to the commencement of the distribution. In addition, the Selling
Stockholders will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including Regulation M, which may limit
the timing of purchases and sales of shares of our common stock by the Selling
Stockholders or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the need to
deliver a copy of this prospectus to each purchaser at or prior to the time
of
the sale.
19
Annex
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock, no par value per share (the
“Common
Stock”),
of
NutraCea, a California corporation (the “Company”),
(the
“Registrable
Securities”)
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
registration statement on Form SB-2 (the “Registration
Statement”)
for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement, dated as of ______________, 2006 (the “Registration
Rights Agreement”),
among
the Company and the Purchasers named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Securityholder”)
of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under such Item
3)
in the Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement. After the Company provides the undersigned with a notice described
in
Section 3(g) of the Registration Rights Agreement and until the Company
thereafter notifies the undersigned that the Company satisfies the requirements
of Rule 172, the undersigned will be required to deliver to the Company the
Notice of Transfer (completed and signed) set forth in Exhibit
1
attached
hereto upon any sale of Registrable Securities pursuant to the Registration
Statement and hereby undertakes to do so.
20
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly you indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|||
|
Fax:
|
|||
| Contact Person: |
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and Number of Registrable Securities beneficially
owned:
|
21
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes o No
o
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes o No
o
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes o No
o
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
22
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
By
signing below, the undersigned acknowledges that it understands its obligation
to comply with the provisions of the Securities Exchange Act of 1934, as
amended, and the Rules thereunder relating to stock manipulation, particularly
Regulation M thereunder (or any successor Rules or regulations), in connection
with any offering of Registrable Securities pursuant to a Registration
Statement. The undersigned agrees that neither it nor any person acting on
its
behalf will engage in any transaction in violation of such provisions. The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein (i) that may occur subsequent to the date
hereof until the effective date of the Registration Statement and (ii) at any
time while the Registration Statement remains effective if requested by the
Company in connection with the filing of a prospectus supplement or a
post-effective amendment. All notices hereunder shall be made in writing at
the
address set forth below.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
23
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
| Dated: |
Beneficial
Owner:
|
|
By:
|
||
|
Name:
|
||
| Title: |
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
NutraCea,
Inc.
1261
Hawk’s Xxxxxx Xxxxx
Xx
Xxxxxx
Xxxxx, XX 00000
Attention:
CFO
Fax
No.
(000) 000-0000
24
EXHIBIT
1
NOTICE
OF
TRANSFER PURSUANT TO REGISTRATION STATEMENT
Xxxxxxxxx
Genshlea Chediak law corporation
000
Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Attention:
Xxxxxxxxxxx Xxxxxxx, Esq.
RE:
NUTRACEA (THE "COMPANY") COMMON STOCK TRANSFER
Dear
Sirs:
Please
be
advised that __________ has transferred ___________ shares of the Company's
Common Stock pursuant to the Registration Statement on Form SB-2 (File
No.___-______) filed by the Company. We hereby certify that the prospectus
delivery requirements, if any, of the Securities Act of 1933, as amended, have
been satisfied with respect to the transfer described above and that the
above-named beneficial owner of the Common Stock is named as a selling
securityholder in the Prospectus dated __________, 200_ or in amendments or
supplements thereto, and that the number of shares of Common Stock transferred
are all/a portion (please circle as appropriate) of the Common Stock listed
for
resale in such Prospectus as amended or supplemented opposite such owner's
name.
|
Very
truly yours,
|
|
|
_________________________________
|
|
|
(Name)
|
|
|
By:
______________________________
|
|
|
(Authorized
Signature)
|
25
