Common use of Number of Securities Clause in Contracts

Number of Securities. The number of shares of Common Stock that will be issued in exchange for the Investor Roll Up Securities shall be an amount such that the aggregate NutraCea Stock Price of such Common Stock is equal to the aggregate value of the Investor Roll Up Securities exchanged therefor (based on the Equity Value of the applicable issuers of such Investor Roll Up Securities, but excluding the effect of Section 7.1(f)). For purposes of determining the value of the Investor Roll Up Securities, clause (i)(a) in each the definitions of Unreturned [•] Capital Contributions and Unreturned NutraCea Capital Contributions set forth in the LLC Agreement shall replaced with the following: “ (i) the number one (1)” any distribution, liquidation or other preferences shall be disregarded. Notwithstanding the foregoing provisions of this Section 6.1(b), the number of shares of Common Stock that are issued to Investor in a NutraCea Roll Up are further limited by the following: (i) Immediately following the NutraCea Roll Up, the percentage of outstanding shares of Common Stock acquired by Investor shall not exceed the lesser of (a) the Investor Roll Up Percentage and (b) 49%. If the number of shares of Common Stock issued to Investor in a NutraCea Roll-up is limited by (b) (and not limited by (a)) of the immediately preceding sentence, then NutraCea and Investor shall determine the number of shares of Common Stock that would have been issuable to Investor if the 49% limitation in (b) was based upon the Fully Diluted Shares instead of the outstanding shares of Common Stock (the number of shares of Common Stock so determined, the “Alternative Share Number”, the difference between the Alternative Share Number and the number of shares that are issuable to Investor in the NutraCea Roll Up, the “Make-Up Share Number” and the shares of Common Stock represented by the particular Common Stock Equivalents outstanding on such date of determination “Roll Up Date CSE Shares”). On the NutraCea Roll Up Date, NutraCea shall issue to Investor a warrant to purchase such number of shares of Common Stock equal to the Make-Up Share Number (“Make-Up Warrant”). The Make-Up Warrant, shall be exercisable, in whole or in any number of parts but not more than one time in any six (6) month period (provided, that the Make-Up Warrant shall be deemed to be exercised in any event immediately prior to (i) a Change of Control and (ii) the termination of such Make-Up Warrant), for one share of Common Stock for each Roll Up Date CSE Share that has been converted or exercised into a share of Common Stock. The Make-Up Warrant shall have a term equal to the longest term of any Common Stock Equivalent representing a Roll Up Date CSE Share plus ninety (90) days. The Make-Up Warrant shall be exercisable for the par value of the Common Stock, and shall not contain cashless or net exercise provisions. (ii) If, as determined above in this Section 6.2(b) (not limited by paragraph 6.2(b)(i)), the number of shares of Common Stock that would be issuable to Investor in a NutraCea Roll Up would (i) result in the Investor holding in excess of 25% of the Fully Diluted Shares as of such date or (ii) in the event that NutraCea has filed a periodic report with the Commission during the five (5) month period prior to NutraCea Roll Up Election Date, have an aggregate NutraCea Stock Price that would exceed 25% of the sum of (A) NutraCea’s total shareholders’ equity as provided in such periodic report, (B) any additional amounts of equity raised by NutraCea in a financing between the last day of the period covered by such report and the applicable date of determination and (C) an adjustment to reflect the assumption that NutraCea owns 100% of the Company, then NutraCea may elect to redetermine the number of shares of Common Stock issuable to Investor in the NutraCea Roll Up (“NutraCea Redetermination”) as provided below. If NutraCea’ elects to make a NutraCea Redetermination, then NutraCea shall notify Investor in writing (“NutraCea Redetermination Notice”) that NutraCea is making such election within ten (10) Business Days after the NutraCea Roll Up Election Date. Within ten (10) Business Days after NutraCea delivers the NutraCea Redetermination Notice, NutraCea shall engage an Investment Bank to determine the Equity Value of NutraCea. NutraCea shall instruct the Investment Bank to determine the value of NutraCea as a going concern, reflecting goodwill, the future prospects of NutraCea and its Subsidiaries and assuming NutraCea owns 100% of the Company, within thirty (30) days of NutraCea’s engagement of the Investment Bank (at the sole cost and expense of NutraCea). The Equity Value of NutraCea, as determined by the Investment Bank, shall be referred to herein as the “NutraCea Appraised Value”. Within ten (10) days following receipt of a written report from the Investment Bank that contains the NutraCea Appraised Value, for purposes of determining the number of shares of Common Stock that will be issued to Investor in the NutraCea Roll Up, the NutraCea Stock Price shall be recalculated in accordance with the proviso set forth in the definition thereof regardless of whether such stock is publicly traded (and for such purposes, the Equity Value of NutraCea shall equal the greater of (i) the NutraCea Appraised Value, (ii) the aggregate NutraCea Stock Price as initially determined in connection with such NutraCea Roll Up and (iii) the sum of (A) NutraCea’s total shareholders’ equity as provided in the applicable periodic report and (B) any additional amounts of equity raised by NutraCea in a financing between the last day of such report and the applicable date of determination). Such recalculated value for the NutraCea Stock Price shall then be used in the calculations in Section 6.2(b) to determine the number of shares of Common Stock that will be issued to Investor pursuant to a NutraCea Roll Up. In no event shall the NutraCea Redetermination eliminate or restrict the provisions of Section 6.2(b)(i) above.

Number of Securities. The number of shares of Common Stock that will be issued in exchange for the Investor Roll Up Securities shall be an amount such that the aggregate NutraCea Stock Price of such Common Stock is equal to the aggregate value of the Investor Roll Up Securities exchanged therefor (based on the Equity Value of the applicable issuers of such Investor Roll Up Securities, but excluding the effect of Section 7.1(f)). For purposes of determining the value of the Investor Roll Up Securities, clause (i)(a) in each of the definitions of Unreturned [•] AF Capital Contributions and Unreturned NutraCea Capital Contributions set forth in the LLC Agreement shall replaced with the following: “ (i) the number one (1)” any distribution, liquidation or other preferences shall be disregarded. Notwithstanding the foregoing provisions of this Section 6.1(b), the number of shares of Common Stock that are issued to Investor in a NutraCea Roll Up are further limited by the following: (i) Immediately following the NutraCea Roll Up, the percentage of outstanding shares of Common Stock acquired by Investor shall not exceed the lesser of (a) the Investor Roll Up Percentage and (b) 49%. If the number of shares of Common Stock issued to Investor in a NutraCea Roll-up is limited by (b) (and not limited by (a)) of the immediately preceding sentence, then NutraCea and Investor shall determine the number of shares of Common Stock that would have been issuable to Investor if the 49% limitation in (b) was based upon the Fully Diluted Shares instead of the outstanding shares of Common Stock (the number of shares of Common Stock so determined, the “Alternative Share Number”, the difference between the Alternative Share Number and the number of shares that are issuable to Investor in the NutraCea Roll Up, the “Make-Up Share Number” and the shares of Common Stock represented by the particular Common Stock Equivalents outstanding on such date of determination “Roll Up Date CSE Shares”). On the NutraCea Roll Up Date, NutraCea shall issue to Investor a warrant to purchase such number of shares of Common Stock equal to the Make-Up Share Number (“Make-Up Warrant”). The Make-Up Warrant, shall be exercisable, in whole or in any number of parts but not more than one time in any six (6) month period (provided, that the Make-Up Warrant shall be deemed to be exercised in any event immediately prior to (i) a Change of Control and (ii) the termination of such Make-Up Warrant), for one share of Common Stock for each Roll Up Date CSE Share that has been converted or exercised into a share of Common Stock. The Make-Up Warrant shall have a term equal to the longest term of any Common Stock Equivalent representing a Roll Up Date CSE Share plus ninety (90) days. The Make-Up Warrant shall be exercisable for the par value of the Common Stock, and shall not contain cashless or net exercise provisions. (ii) If, as determined above in this Section 6.2(b) (not limited by paragraph 6.2(b)(i)), the number of shares of Common Stock that would be issuable to Investor in a NutraCea Roll Up would (i) result in the Investor holding in excess of 25% of the Fully Diluted Shares as of such date or (ii) in the event that NutraCea has filed a periodic report with the Commission during the five (5) month period prior to NutraCea Roll Up Election Date, have an aggregate NutraCea Stock Price that would exceed 25% of the sum of (A) NutraCea’s total shareholders’ equity as provided in such periodic report, (B) any additional amounts of equity raised by NutraCea in a financing between the last day of the period covered by such report and the applicable date of determination and (C) an adjustment to reflect the assumption that NutraCea owns 100% of the Company, then NutraCea may elect to redetermine the number of shares of Common Stock issuable to Investor in the NutraCea Roll Up (“NutraCea Redetermination”) as provided below. If NutraCea’ elects to make a NutraCea Redetermination, then NutraCea shall notify Investor in writing (“NutraCea Redetermination Notice”) that NutraCea is making such election within ten (10) Business Days after the NutraCea Roll Up Election Date. Within ten (10) Business Days after NutraCea delivers the NutraCea Redetermination Notice, NutraCea shall engage an Investment Bank to determine the Equity Value of NutraCea. NutraCea shall instruct the Investment Bank to determine the value of NutraCea as a going concern, reflecting goodwill, the future prospects of NutraCea and its Subsidiaries and assuming NutraCea owns 100% of the Company, within thirty (30) days of NutraCea’s engagement of the Investment Bank (at the sole cost and expense of NutraCea). The Equity Value of NutraCea, as determined by the Investment Bank, shall be referred to herein as the “NutraCea Appraised Value”. Within ten (10) days following receipt of a written report from the Investment Bank that contains the NutraCea Appraised Value, for purposes of determining the number of shares of Common Stock that will be issued to Investor in the NutraCea Roll Up, the NutraCea Stock Price shall be recalculated in accordance with the proviso set forth in the definition thereof regardless of whether such stock is publicly traded (and for such purposes, the Equity Value of NutraCea shall equal the greater of (i) the NutraCea Appraised Value, (ii) the aggregate NutraCea Stock Price as initially determined in connection with such NutraCea Roll Up and (iii) the sum of (A) NutraCea’s total shareholders’ equity as provided in the applicable periodic report and (B) any additional amounts of equity raised by NutraCea in a financing between the last day of such report and the applicable date of determination). Such recalculated value for the NutraCea Stock Price shall then be used in the calculations in Section 6.2(b) to determine the number of shares of Common Stock that will be issued to Investor pursuant to a NutraCea Roll Up. In no event shall the NutraCea Redetermination eliminate or restrict the provisions of Section 6.2(b)(i) above.