RESALE RESTRICTION AGREEMENT
Exhibit
10.49
NUTRACEA,
a California corporation (“NutraCea”)
and
[_______] (“Shareholder”),
agree, as of September 30, 2005, as follows:
1.
Background
and Purpose.
NutraCea, Red Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of NutraCea (“Merger
Sub”),
and
The RiceX Company, a Delaware corporation (“RiceX”),
are
parties to that certain Agreement and Plan of Merger and Reorganization
(“Merger
Agreement”)
dated
as of April 4, 2005, which provides for the merger (“Merger”)
of
Merger Sub into RiceX and for RiceX to thereafter be a wholly owned subsidiary
of NutraCea. Pursuant to the Merger, each share of RiceX common stock will
be
converted into NutraCea common stock and each option to purchase RiceX common
stock that is outstanding at the effective time of the Merger will be assumed
by
NutraCea and become an option to purchase NutraCea common stock. Shareholder
is
the holder of shares of RiceX common stock and/or options to purchase shares
of
RiceX common stock and accordingly will receive significant consideration
pursuant to the terms of the Merger Agreement. In connection with the Merger,
NutraCea and Shareholder desire to enter into this Resale Restriction Agreement
(“Agreement”)
on the
terms set forth below. NutraCea and Shareholder shall not be required to perform
their obligations under this Agreement until the effective time of the
Merger.
2.
Resale
Restriction.
Except
as set forth in Section 3 below, Shareholder agrees that, without the express
prior written consent of NutraCea, Shareholder will not offer, sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of (the "Resale
Restrictions"),
any
securities of NutraCea beneficially owned or otherwise held by Shareholder
immediately following the Merger (collectively, the "Shares")
until
December 31, 2007 (the "Lock-up
Period").
The
Resale Restrictions shall apply regardless of whether Shareholder is an employee
or Director of NutraCea.
3.
Permitted
Transfers.
Notwithstanding the provisions of Section 2 above, Shareholder may transfer
(subject to the terms of any option or warrant agreement) any or all of the
Shares either during Shareholder’s lifetime or on death by will or intestacy to
Shareholder’s immediate family or to a trust the beneficiaries of which are
exclusively Shareholder and/or a member or members of Shareholder’s immediate
family; provided,
however,
that in
any such case it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
Shares subject to the provisions of this Agreement, and there shall be no
further transfer of such Shares except in accordance with this Agreement. For
purposes of this Agreement, "immediate family" shall mean spouse, lineal
descendant, father, mother, brother or sister of the transferor. In addition,
notwithstanding the provision of Section 2 above, Shareholder may pledge or
hypothecate shares of NutraCea common stock held beneficially or of record
by
Shareholder and Shareholder may net exercise any options or warrants that are
held by Shareholder pursuant to a net exercise provision as long as 100% of
the
shares received pursuant to the transaction are subject to this
agreement.
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4.
Stock
Transfer Instructions.
Shareholder agrees and consents to the entry of stop transfer instructions
with
the transfer agent for NutraCea’s common stock against any transfer of shares of
NutraCea’s common stock by Shareholder in contravention of the Resale
Restrictions.
5.
Miscellaneous.
5.1.
Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties regarding the
matters contained herein, all oral agreements being merged herein, and supersede
all prior representations. There are no representations, agreements,
arrangements, or understandings, oral or written, between or among the parties
relating to the subject matter of this Agreement that are not fully expressed
herein and therein. Notwithstanding the foregoing, this Agreement shall not
modify or limit any other agreement by which Shareholder is bound that restricts
the transfer by Shareholder of NutraCea securities.
5.2.
Amendment.
This
Agreement may be amended by the parties hereto at any time by execution of
an
instrument in writing signed on behalf of each of the parties hereto.
5.3.
Waiver.
Any
waiver of the terms or conditions of this Agreement may be waived at any time
by
the party entitled to the benefit thereof, but no such waiver shall affect
or
impair the right of the waiving party to require observance, performance or
satisfaction either of that term or condition as it applies on a subsequent
occasion or of any other term or condition.
5.4.
Nonassignability.
This
Agreement shall not be assigned by Shareholder without the prior written consent
of NutraCea. Any assignment contrary to the provisions of this Agreement shall
be deemed a default under this Agreement, allowing NutraCea to exercise all
remedies available under law.
5.5.
Succession.
Subject
to the provisions otherwise contained in this Agreement, this Agreement shall
inure to the benefit of and be binding on successors and assigns of the
respective parties.
5.6.
Notices.
Any
notice under this Agreement shall be in writing, and any written notice or
other
document shall be deemed to have been duly given (i) on the date of personal
service on the parties, (ii) on the third business day after mailing, if the
document is mailed by registered or certified mail, (iii) one day after being
sent by professional or overnight courier service or messenger service
guaranteeing one-day delivery, with receipt confirmed by the courier, or (iv)
on
the date of transmission by telegram, telex, telecopy or other means of
electronic transmission resulting in written copies, with receipt confirmed.
Any
such notice shall be delivered or addressed to the parties at the addresses
set
forth below or at the most recent address specified by the addressee through
written notice under this provision. Failure to conform to the requirement
that
mailings be done by registered or certified mail shall not defeat the
effectiveness of notice actually received by the addressee.
5.7.
Attorneys'
Fees; Prejudgment Interest.
If the
services of an attorney are required by any party to secure the performance
of
this Agreement or otherwise upon the breach or default of another party to
this
Agreement, or if any judicial remedy or arbitration is necessary to enforce
or
interpret any provision of this Agreement or the rights and duties of any person
in relation thereto, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and other expenses, in addition to any other relief
to
which such party may be entitled. Any award of damages following judicial remedy
or arbitration as a result of the breach of this Agreement or any of its
provisions shall include an award of prejudgment interest from the date of
the
breach at the maximum amount of interest allowed by law.
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5.8.
Counterparts.
This
Agreement may be executed in any number of counterparts with the same effect
as
if the parties had all signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
5.9.
Captions.
All
paragraph captions are for reference only and shall not be considered in
construing this Agreement.
5.10.
Severability.
If any
provision of Agreement is held by a court of competent jurisdiction to be
invalid or enforceable, the remainder of the Agreement which can be given effect
without the invalid provision shall continue in full force and effect and shall
in no way be impaired or invalidated.
5.11.
Governing
Law.
The
rights and obligations of the parties and the interpretation and performance
of
this Agreement shall be governed by the law of California, excluding its
conflict of laws rules.
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NUTRACEA
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SHAREHOLDER
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Xxxxxxx
Xxxxx, President
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[________________]
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Address
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1261
Hawks’ Flight Court
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Address:
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Xx
Xxxxxx Xxxxx, XX 00000
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Facsimile:
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(000)
000-0000
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Facsimile:
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(___)
___-____
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