EXHIBIT 4.50
THIS OPTION HAS BEEN ISSUED PRUSUANT TO EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND THE
QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS (THE "LAWS").
IT IS UNLAWFUL TO EXERCISE, SELL, PLEDGE OR OTHERWISE DISPOSE OF THIS OPTION,
OR ANY INTEREST THEREIN, OR RECEIVE ANY CONSIDERATION THEREFORE, IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
QUALIFICATION UNDER THE LAWS, UNLESS EXEMPTIONS FROM SUCH REGISTRATION AND
QUALIFICATION REQUIREMENTS ARE AVAILABLE.
THIS OPTION MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS OF THIS STOCK
OPTION AGREEMENT.
----------------------
THE RiceX-TM- COMPANY
NON-STATUTORY STOCK OPTION AGREEMENT
The RiceX-TM- Company, a Delaware corporation (the "Company"),
hereby grants TO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Optionee"), an option (the "Option")
to purchase up to 3,000 shares ("Shares") of Common Stock, per value $.001,
of the Company (the "Common Stock") at an exercise price (the "Exercise
Price") equal to $.55 per share, which is equal to the fair market value of
the Company's Common Stock on the date of grant, in all respects subject to
the terms, definitions and provisions of this Non-Statutory Stock Option
Agreement (the "Agreement").
1. NATURE OF THE OPTION. The Option is intended to be a nonstatutory
option and NOT an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
2. PAYMENT OF EXERCISE PRICE.
(a) METHOD OF PAYMENT. Payment of the Exercise Price for shares
purchased upon exercise of the Option shall be made (i) by delivery to the
Company of cash or a check to the order of the Company in an amount equal to
the purchase price of such shares; (ii) subject to the consent of the
Company, by delivery to the Company of shares of Common Stock of the Company
then owned by the Optionee having a fair market value equal in amount to the
purchase price of such shares in accordance with Section 2(b); (iii) by any
other means approved by the Board of Directors and which is consistent with
applicable laws and regulations
(including, without limitation, the provisions of Rule 16b-3 under the
Securities Exchange Act of 1934 and Regulation T promulgated by the Federal
Reserve Board); or (iv) by any combination of such methods of payment.
1
(b) METHOD OF PAYMENT-PUBLIC MARKET. In the event there exists a
public market for the Company's Common Stock on the date of
exercise, payment of the exercise price may be made by surrender
of shares of the Company's Common Stock. In this case payment
shall be made as follows:
(i) Optionee shall deliver to the Secretary of the Company
a written notice which shall set forth the portion of the purchase price the
Optionee wishes to pay with Common Stock, and the number of shares of such
Common Stock the Optionee intends to surrender pursuant to exercise of this
Option, which shall be determined by dividing the aforementioned portion of
the purchase price by the average of the last reported bid and asked prices
per share of Common Stock of the Company, as reported in THE WALL STREET
JOURNAL, (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation (NASDAQ) System or, in
the event the Common Stock is listed on a national securities exchange, or on
the NASDAQ National Market System, NASDAQ Small-Cap Market or any successor
national market system, the closing price of Common Stock of the Company on
such exchange as reported in the WALL STREET JOURNAL), for the day on which
the notice of exercise is sent or delivered;
(ii) Fractional shares shall be disregarded and the
Optionee shall pay in cash an amount equal to such fraction multiplied by the
price determined under subparagraph (i) above;
(iii) The written notice shall be accompanied by a duly
endorsed blank stock power with respect to the number of Shares set forth in
the notice, and the certificate(s) representing said Shares shall be
delivered to the Company at its principal offices within three (3) working
days from the date of the notice of exercise;
(iv) The Optionee hereby authorizes and directs the
Secretary of the Company to transfer so many of the Shares represented by
such certificate(s) as are necessary to pay the purchase price in accordance
with the provisions herein;
(v) If any such transfer of Shares requires the consent of
the California Commissioner of Corporations or of some other agency under the
securities laws of any other state, or an opinion of counsel for the Company
or Optionee that such transfer may be effected under applicable Federal and
state securities laws, the time periods specified herein shall be extended
for such periods as the necessary request for consent to transfer is pending
before said Commissioner or other agency, or until counsel renders such an
opinion, as the case may be. All parties agree to cooperate in making such
request for transfer, or in obtaining such opinion of counsel, and no
transfer shall be effected without such consent or opinion if required by
law; and
(vi) Nothwithstanding any other provision herein, the
Optionee shall only be permitted to pay the purchase price with shares of the
Company's Common Stock owned by him as of the exercise date in the manner and
within the time periods allowed under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 as such regulation is presently constituted,
as it is amended from time to time, and as it is interpreted now or hereafter
by the
2
Securities and Exchange Commission and any such shares shall have been held
by the Optionee for not less than six (6) months.
3. EXERCISE OF OPTION. The Option shall vest and become exercisable
during its term, subject to the provisions of Section 5 below, as
follows:
(a) VESTING AND RIGHT TO EXERCISE.
(i) The Option hereby granted shall vest and become
exercisable as to 1/3 of the Shares subject to this Option annually,
commencing one year from the date of grant of the Option, until fully vested.
If there should occur a "change of control" of the Company, as defined below,
then the Option shall immediately vest and become exercisable in full. For
purposes of the foregoing provision, a "change in control" means the
occurrence of any of the following:
(A) any "person", as such term is used in Sections
13(d) and 14(d) of the Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company or its existing shareholders) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company (or a successor to the
Company) representing 50% or more of the combined voting power of the then
outstanding securities of the Company or such successor;
(B) the dissolution of the Company or liquidation
of more than 50% or more in value of the assets of the Company, (ii) any
merger or reorganization of the Company whether or not another entity is the
survivor, (iii) a transaction (other than the initial public offering of
Company's shares) pursuant to which holders, as a group, of all of the shares
of the Company outstanding before the transaction, hold, as a group, less
than 50% of the combined voting power of the Company or any successor company
outstanding after the transaction, or (iv) any other event or series of
events which the board determines, in its discretion, would materially alter
the structure of the Company or its ownership.
(ii) In the event of the Optionee's death, disability or
other termination of employment prior to exercise, the exercisability of the
Option shall be governed by Section 5, below.
(iii) The Option may be exercised in whole or in part but
may not be exercised as to fractional shares.
(b) METHOD OF EXERCISE. In order to exercise any portion of
the Option, the Optionee shall execute and deliver to the Chief Financial
Officer of the Company, the Notice of Exercise of Stock Option in the form
attached hereto as Exhibit A, together with the Consent of Spouse. The Notice
of Exercise must be accompanied by payment in full of the aggregate purchase
price for the Shares to be purchased in the type of consideration set forth
in Section 2. The Notice of Exercise may be delivered to the Company at any
time. The certificate(s) for the Shares as to which the Option has been
exercised shall be registered in the name of Optionee or his designee.
3
(c) RESTRICTIONS ON EXERCISE. The Option may not be exercised
if the issuance of the Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any applicable
Federal or state securities law or any other law or regulation. As a
condition to the exercise of the Option, the Company may require the Optionee
to make any representation or warranty to the company at the time of exercise
of the Option as in the opinion of legal counsel for the Company may be
required by any applicable law or regulation, including the execution and
delivery of an appropriate representation statement. The stock certificate
(s) for the Shares issued upon exercise of the Option may bear appropriate
legends restricting transfer.
(d) DELIVERY OF CERTIFICATES. The Company shall deliver the
certificate(s) for the Shares issued upon exercise of the Option to the
Director as soon as is practicable; PROVIDED, HOWEVER, that if any law or
regulation requires the Company to take any action with respect to such
shares before the issuance thereof, including, without limitation, actions
taken pursuant to Section 6 below, then the date of delivery of such Shares
shall be extended for a period necessary to take such action.
4. NON-TRANSFERABILITY OF OPTION. The Option may be exercised during
the lifetime of the Optionee only by the Optionee any may not be transferred
in any manner other than by will or by the laws of descent and distribution.
The terms of the Option shall be binding upon the executors, administrators,
heirs and successors of the Optionee.
5. TERM OF THE OPTION. Except as otherwise provided in this
Agreement, to the extent not previously exercised, the right to exercise the
Option shall terminate on the tenth (10th) anniversary of the Date of Grant.
Notwithstanding the foregoing, if an Optionee ceases to be an employee of the
Company for any reason, except death and disability, he or she may, but only
within ninety (90) days after the date he or she ceases to be an employee of
the Company, exercise his or her Option to the extent that he or she was
entitled to exercise it at the date of such termination, and in the case of
the Optionee's death or disability, the Optionee (or the Administrator or
Executor or other Representative of the Optionee's Estate) may, but only
within one (1) year after the date he or she ceases to be an employee of the
Company due to death or disability, exercise his or her Option to the extent
that he or she was entitled to exercise it at the date of such termination;
PROVIDED, HOWEVER, that in no event may the Option be exercised after its ten
(10) year term has expired. To the extent that the Optionee was not entitled
to exercise an Option at the date of such termination, or if he or she does
not exercise such Option (which he or she was entitled to exercise) within
the time specified herein, the Option shall terminate.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION: OTHER ADJUSTMENTS.
Subject to any required action by the shareholders of the Company, the number
of Shares and the Exercise Price shall be proportionately adjusted for any
increase or decrease in the number of issued shares of common stock resulting
from a stock split, reverse stock split, combination, reclassification, the
payment of a stock dividend on the common stock or any other increase or
decrease in the number of shares of Common Stock of the Company effected
without the receipt of consideration by the Company; PROVIDED, HOWEVER, that
conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment
shall be made by the Board, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no issue
by the Company of
4
shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and not adjustment by reason thereof shall be
made with respect to, the number of Shares subject to, or the Exercise Price
of, this Option.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the number of Shares, we well as the
Exercise Price, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings, or other increases or
reductions of shares of its outstanding common stock, and in the event of the
Company being consolidated with or merged into any other corporation;
PROVIDED, however, that in no event shall the Optionee be adversely affected
by such adjustment.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for changing, modifying, amending or adjusting any of the
terms of this Option solely in order for the Company to perfect a significant
financing; provided, however, that in no event shall the Optionee be
adversely affected by such adjustment.
7. RIGHTS OF SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Shares until the date of the issuance or the
transfer to the Optionee of the certificate(s) for such Shares and only after
the Exercise Price for such Shares has been paid in full.
8. AMENDMENT. Except as set forth in Section 6, this Agreement may
not be amended without the written consent of the Optionee.
9. INCOME TAX WITHHOLDING. The Optionee authorizes the Company to
withhold, in accordance with applicable law from any compensation payable to
him or her, any taxes required to be withheld by Federal, state or local laws
as a result of the exercise of this Option. Furthermore, in the event of any
determination that the Company has failed to withhold a sum sufficient to pay
all withholding taxes due in connection with the exercise of this Option, the
Optionee agrees to pay the Company the amount of such deficiency in cash
within five (5) days after receiving a written demand from the Company to do
so, whether or not Optionee is an employee or director of the Company at that
time.
10. INVESTMENT REPRESENTATIONS; LEGENDS.
(a) REPRESENTATIONS. The Optionee represents, warrants and
covenants that:
(i) Any shares purchased upon exercise of this Option
shall be acquired for the Optionee's account for investment only, and not
with a view to, or for sale in connection with, any distribution of the
shares in violation of the Securities Act of 1933 (the "Securities Act"), or
any rule or regulation under the Securities Act.
(ii) The Optionee has had such opportunity as he or she
has deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Optionee to evaluate the merits and
risks of his or her investment in the Company.
(iii) The Optionee is able to bear the economic risk of
holding such shares acquired pursuant to the exercise of this option for an
indefinite period.
5
(iv) The Optionee understands that the Shares acquired
pursuant to the exercise of this option are not registered under the
Securities Act and are "restricted securities" within the meaning of Rule 144
under the Securities Act and may not be transferred, sold or otherwise
disposed of in the absence of an effective registration statement with
respect to the Shares filed and made effective under the Securities Act of
1933, or an opinion of counsel satisfactory to the Company to the effect that
registration under such Act is not required.
By making payment upon exercise of this option, the Optionee shall be deemed
to have reaffirmed, as of the date of such payment, the representations made
in this Section 10.
(b) LEGEND OF STOCK CERTIFICATE. All stock certificates
representing shares of Common Stock issued to the Optionee upon exercise of
this option shall have affixed thereto legend(s) substantially in the
following forms, in addition to any other legends required by applicable
state law:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SHARES EVIDENCED BY THIS CERTIFICATE, FILED AND MADE
EFFECTIVE UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER SUCH ACT IS NOT REQUIRED."
DATE OF ▇▇▇▇▇:
--------------
THE RiceX-TM- COMPANY
By:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., Chief Executive Officer
By:
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
6
The Optionee acknowledges receipt of the Non-Statutory
Stock Option Agreement attached hereto and represents that he or she is
familiar with the terms and provisions thereof, and hereby accepts the Option
subject to all of the terms and provisions thereof. The Optionee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors of The RiceX-TM- Company upon any
questions arising under such Agreement.
Dated:
--------------------
OPTIONEE:
------------------------------------
CONSENT OF SPOUSE
I, _________________________, spouse of the Optionee who executed
the Non-Statutory Stock Option Agreement attached hereto, hereby agree that
my spouse's interest in the shares of Common Stock of The RiceX-TM- Company
subject to said Agreement shall be irrevocably bound by the Agreement's
terms. I agree to accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors of The RiceX-TM- Company upon any
questions arising under such Agreement. I further agree that my community
property interest in such Shares, if any, shall similarly be bound by said
Agreement and that such consent is binding upon my executors, administrators,
heirs and assigns. I agree to execute and deliver such documents as may be
necessary to carry out the intent of said Agreement and this consent.
Dated:
--------------------
Signature:
------------------------------
Print Name:
-----------------------------
7
EXHIBIT A
To: THE RiceX-TM- Company
1241 Hawk's Flight Court
El Dorado Hills, CA 95762
Subject: NOTICE OF EXERCISE OF STOCK OPTION
With respect to the stock option granted to the undersigned
by The RiceX-TM- Company, (the "Company") on ________________________, to
purchase an aggregate of _______________ shares of the Company's Common
Stock, this is official notice that the undersigned hereby elects to exercise
such option to purchase shares as follows:
NUMBER OF SHARES:
-------------------
DATE OF PURCHASE:
-------------------
MODE OF PAYMENT: (certified check or cash)
--------------------
The shares should be issued as follows:
NAME:
--------------------------------
ADDRESS:
-----------------------------
-----------------------------
Signed:
-----------------------------
Dated:
-------------------------------
Please send this notice of exercise to:
The RiceX-TM- Company
1241 Hawk's Flight Court.
El Dorado Hills, CA 95762
8
Exhibit 4.50
SCHEDULE TO IDENTICAL DOCUMENTS FILED
NAME SHARES
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 12,000
Reddy ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 12,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 30,000
▇▇▇▇▇ ▇▇▇▇▇▇ 12,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 12,000
▇▇▇ ▇▇▇▇▇ 6,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 12,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 12,000
▇▇▇ ▇▇▇▇▇▇▇▇ 6,000
▇▇▇▇▇ ▇▇▇▇ 6,000
▇▇▇▇ ▇▇▇▇▇▇ 6,000
9