Exhibit 10.12
PUT/CALL AGREEMENT
This put/call agreement (the "Agreement") is made as of this 15th day of
January, 2002, by and between NutraStar Incorporated, a California corporation
("NutraStar") and The RiceX Company, a Delaware corporation ("RiceX").
RECITALS
A. RiceX has agreed to purchase 130,000 shares of Series A Preferred Stock
of NutraStar (the "Shares") in exchange for cancellation of indebtedness (the
"Debt Exchange") pursuant to that certain Subscription Agreement dated as of
December 10, 2001 (the "Subscription Agreement") by and between Alliance
Consumer International, Inc. (now NutraStar Incorporated)("NutraStar") and
RiceX.
B. As a condition to the Debt Exchange, NutraStar has agreed to grant RiceX
and option to sell the Shares to NutraStar, and RiceX has agreed to grant
NutraStar an option to purchase the Shares from RiceX all upon the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Put Right
NutraStar hereby irrevocably grants and issues to RiceX the right and options to
sell to NutraStar (hereinafter referred to as the "Put Right") all but not less
than all of the Shares or shares of Common Stock into which the Shares have been
converted (the term "Shares" is hereinafter used to refer to the Shares and any
shares of Common Stock into which the shares may have been converted) at a
purchase price of One Hundred Thirty Thousand Dollars ($130,000.00) (the
"Purchase Price") plus all accumulated but unpaid dividends, if any, subject to
adjustment as provided in Section 4 hereof. RiceX may exercise the Put Right and
sell to NutraStar, and NutraStar agrees to purchase from RiceX all but not less
than all of the Shares at any time after six months from the date hereof by
giving NutraStar written notice of its intent to exercise its Put Right in
accordance with Section 3(a) below (the "Put Right Notice").
2. Call Right
RiceX hereby irrevocably grants and issues to NutraStar and/or its assigns
the right and option to purchase from RiceX (hereinafter referred to as the
"Call Right") all but not less than all of the Shares at the Purchase Price,
plus all accumulated but unpaid dividends, if any, subject to adjustment as
provided in Section 4 hereof. NutraStar and/or its assigns may exercise the Call
Right and purchase from RiceX and RiceX agrees to sell to NutraStar and/or its
assigns, all but not less than all of the Shares at any time after the date
hereof by giving RiceX written notice of its intent to exercise its Call Right
in accordance with Section 3(a) below (the "Call Right Notice").
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3. Payment and Delivery of Shares
(a) Subject to this Section 3, NutraStar shall, within sixty (60) days
after receipt of a Put Right Notice or delivery of a Call Right Notice, as
applicable (the "Closing") pay to RiceX in cash or by certified cashier's or
other check acceptable to RiceX, the relevant Purchase Price, and RiceX shall
deliver to NutraStar at the Closing a stock certificate or certificates
representing the total number of Shares being transferred duly endorsed in
blank by RiceX or having attached thereto a stock power duly executed by RiceX
in proper form for transfer.
(b) In the event that any payment to be made by NutraStar is prohibited by
applicable provisions of corporate law or by any other applicable law, then such
payment shall be immediately made by NutraStar at the next earliest time and to
the extent possible, when compliance with said law may be effected, and
NutraStar agrees that it will execute all such documents and take all such other
steps as may be necessary to expedite and effectuate to the extent possible such
compliance. NutraStar specifically acknowledges that RiceX shall be under no
obligation to transfer the Shares unless and until a cash payment is made.
4. Adjustment of Purchase Price
In the event of any stock dividend, stock split, combination of shares,
subdivision or other recapitalization of the Shares, then the number of Shares
and the Purchase Price shall be proportionately adjusted to take into account
each of any such events, so that upon the exercise of the Put Right or Call
Right provided for herein, RiceX shall be entitled to put or NutraStar shall be
able to call, as applicable, such number of Shares, and RiceX shall receive
such Purchase Price, as it would have been entitled to do or receive after the
happening of any such event had the Put Right had the Put Right or Call Right
been exercised immediately prior to the happening of any such event.
5. Miscellaneous
(a) Each party agrees that upon the request of the other it will, from time
to time, execute and deliver to such other party all such instruments and
documents of further assurance or otherwise and will do any and all such acts
and things as reasonably may be required to carry out the obligations of such
party hereunder and consummate the transactions contemplated hereby.
(b) The headings of this Agreement are included for the purpose of
references and convenience only and shall not limit or otherwise affect the
construction or interpretation of any of the provisions of this Agreement.
(c) This Agreement, including all exhibits, constitutes the entire
agreement between the parties hereto pertaining to this subject matter hereof
and supersedes all prior and contemporaneous agreement and understandings of the
parties in connection herewith. No supplement, modification or amendment of this
Agreement shall be effective unless executed in writing by the parties hereto.
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(d) Whenever the service or the giving of any document or consent by or on
behalf of any party hereto upon any other party is herein provided for, or
becomes necessary or convenient under the provisions of this Agreement or any
document related hereto, a valid and efficient service of such document shall
be effected by delivering the same in written to such party in person, by
Federal Express or other reputable courier, by facsimile or by sending the same
by registered or certified mail, return receipt requested, and such shall be
deemed received upon personal delivery if delivered personally, by Federal
Express or other reputable courier or by facsimile, or four(4) business days
after deposit in the mail in the United States, postage prepaid addressed to the
person to receive such notice or communication at the following address:
NutraStar: 0000 Xxxxx Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxxxx XxXxxx
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
RiceX: 0000 Xxxxx Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxx
Telephone:(000) 000-0000
Facsimile:(916) 933-333
Notice of change of address shall be given by written notice in the manner
detailed in this section 5(d).
(e) This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute on and the same
instrument.
(f) This Agreement shall be construed in accordance with and shall be
governed by the laws of the State of California.
(g) Neither party shall be entitled to assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party, which consent shall not be reasonably withheld. Subject to the foregoing,
this Agreement shall be binding upon and enforeceable by, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
(h) In the event any portion of this Agreement shall be declared by any
court of competent jurisdiction to be invalid, illegal or unenforceable, such
portion shall be deemed severed from this Agreement and the remaining parts
hereof shall remain in full force and effect as fully as though such invalid,
illegal or unenforceable portion had never been a part of this Agreement.
(i) As used in this Agreement, the masculine, the feminine and the neuter
gender, and the singular or plural number shall be deemed to include the others
wherever the context so indicates or requires.
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(j) In the event of the bringing of any action by any party hereto against
any other party arising out of this Agreement the party who is determined to be
the prevailing party shall be entitle to recover from the other party all costs
and expenses of suit, including reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NutraStar Incorporated
a California Corporation
("NutraStar")
By: /s/ Xxxxxxxx XxXxxx,
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Xxxxxxxx XxXxxx, President and
Chief Executive Officer
The RiceX Company
a Delaware Corporation
("RiceX")
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Chief Financial Officer
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