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EXHIBIT 4.57
ATTACHMENT I
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULES 701 AND 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE
HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT IS AVAILABLE. THE HOLDER HEREOF MAY NOT ENGAGE IN HEDGING TRANSACTIONS WITH
REGARD TO SUCH SECURITIES UNLESS IN COMPLIANCE WITH THE ACT. THE TRANSFER OR
EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN
ACCORDANCE HEREWITH.
Warrant to Purchase up to
3,571,429 Shares of Common Stock
of The RiceX Company
WHEREAS, reference is made to that certain Definitive Agreement, dated
of even date herewith, pursuant to which The RiceX Company, a Delaware
corporation (the "Company"), issued and Intermark Partners, an Indiana limited
liability company ("Intermark" or "Investor") purchased an aggregate of three
million five hundred seventy-one thousand four hundred twenty-nine (3,571,429)
shares of Common Stock of the Company ("Common Stock") and Warrants to purchase
(a) an aggregate of three million five hundred seventy-one thousand four hundred
twenty-nine (3,571,429) Shares of Class I Restricted of Common Stock, (b) an
aggregate of one million seven hundred eighty-five thousand seven hundred
fifteen (1,785,715) Shares of Class II Restricted Common Stock, and (c) an
aggregate of two million six hundred seventy-eight thousand five hundred
seventy-two (2,678,572) Shares of Class III Restricted Common Stock, in exchange
for Intermark converting its existing $2,500,000.00 Note from RiceX; and
WHEREAS, this Warrant shall represent the Class I Warrant ("Warrant")
to be granted to GBV Intermark Fund, LLC pursuant to the terms of the Definitive
Agreement.
NOW, THEREFORE, the Company and Intermark agree as follows:
1. Grant.
On the terms and subject to the conditions set forth herein,
Investor is hereby granted the right to purchase, at any time during the
Exercise Period (as hereinafter defined), up to one million seven hundred
eighty-five thousand seven hundred fifteen (1,785,715) Class I
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Shares of Common Stock (the "Warrant Shares") of the Company at the Exercise
Price (as defined below and as subject to adjustment as provided in Article 5
hereof).
2. Exercise of Warrant.
(a) Exercise Period. This Warrant is exercisable at
any time during the five (5) year period commencing on the date hereof (the
"Exercise Period").
(b) Cash Exercise. The Warrant is exercisable at a
price of per Warrant Share equal to the Exercise Price (as hereinafter defined)
payable in cash or by check to the order of the Company, or any combination of
cash or check, subject to adjustment as provided in Article 5 hereof. Upon
surrender of this Warrant with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price for the Warrant Shares
purchased, at the Company's principal offices, Investor (or other registered
holder of this Warrant (the "Holder") shall be entitled to receive a certificate
or certificates for the Warrant Shares so purchased. The purchase rights
represented by this Warrant are exercisable at the option of the Holder, in
whole or in part (but not as to fractional Warrant Shares). In the case of the
purchase of less than all the Warrant Shares purchasable under this Warrant, the
Company shall cancel said Warrant upon the surrender thereof and shall execute
and deliver a new Warrant of like tenor for the balance of the Warrant Shares
purchasable thereunder.
(c) Cashless Exercise. At any time during the Exercise
Period, the Holder may, at its option, exchange this Warrant, in whole or in
part (a "Warrant Exchange"), into the number of shares of Common Stock
determined in accordance with this Section 2.3, by surrendering this Warrant at
the principal office of the Company accompanied by a notice stating such
Holder's intent to effect such exchange, the number of Warrant Shares to be
exchanged and the date on which the Holder requests that such Warrant Exchange
occur (the "Notice of Exchange"). The Warrant Exchange shall take place on the
date specified in the Notice of Exchange or, if later, the date the Notice of
Exchange is received by the Company (the "Exchange Date"). Certificates for the
shares of Common Stock issuable upon such Warrant Exchange and, if applicable, a
new Warrant of like tenor evidencing the balance of the Warrant Shares remaining
subject to this Warrant, shall be issued as of the Exchange Date and delivered
to the Holder within seven (7) days following the Exchange Date. In connection
with any Warrant Exchange, this Warrant shall represent the right to subscribe
for and acquire the number of Warrant Shares (rounded to the next highest
integer) equal to (i) the number of Warrant Shares specified by the Holder in
its Notice of Exchange (the "Total Number") less (ii) the number of Warrant
Shares equal to the quotient obtained by dividing (A) the product of the Total
Number and the then-current Exercise Price by (B) the market value of a share of
Common Stock on the Exchange Date, as determined by the closing price or closing
bid price of the Company's Common Stock as reported by the Over-the-Counter
Bulletin Board Market (the "OTC"), the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or by a national exchange or, if
the Common Stock is not listed on the OTC, on NASDAQ or on an exchange, as
determined in good faith by the Board of the Directors of the Company. Warrants
exchanged for shares of Common Stock shall no longer entitle the holder thereof
to purchase Warrant Shares.
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(d) Issuance of Certificates. Upon the exercise of
this Warrant pursuant to Section 2(b) or Section 2(c) above, the issuance of
certificates representing the Warrant Shares purchased shall be made forthwith
without charge to the Holder thereof including, without limitation, any tax
which may be payable in respect of the issuance thereof, and such certificates
shall (subject to the provisions of Article 3 hereof) be issued in the name of,
or in such names as may be directed by, the Holder thereof; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Company shall not
be required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
(i) Upon exercise, in whole or in part, of this
Warrant, certificates representing the Warrant Shares shall bear a legend
substantially similar to the following:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE OFFERED OR SOLD EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, (II) TO THE EXTENT APPLICABLE, PURSUANT TO RULE 144
UNDER THE ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (III) UPON THE DELIVERY BY THE HOLDER TO THE COMPANY OF AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, STATING THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE."
3. Securities Act Restrictions.
Investor, by his acceptance hereof, covenants and agrees
that this Warrant is being acquired as an investment and not with a view to the
distribution thereof, and that neither this Warrant nor, if exercised, any
Warrant Shares, may be offered or sold except (i) pursuant to an effective
registration statement under the Act, (ii) to the extent applicable, pursuant to
Rule 144 under the Act (or any similar rule under such Act relating to the
disposition of securities), or (iii) upon the delivery by the holder to the
Company of an opinion of counsel, reasonably satisfactory to the issuer, stating
that an exemption from registration under such Act is available.
4. Exercise Price and Adjusted Exercise Price.
Subject to adjustment as set forth in Section 5, the
exercise price of the Warrant Shares (the "Exercise Price") shall be equal to
$.70 per Warrant Share.
5. Adjustments of Exercise Price and Number of
Warrant Shares.
(a) Stock Split, Stock Dividend, Subdivision
and Combination. In case the Company shall at any time subdivide or combine the
outstanding shares of Common Stock
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(including by way of a stock dividend), the Exercise Price shall forthwith be
proportionately decreased in the case of subdivision or increased in the case of
combination. Upon each adjustment of the Exercise Price pursuant to the
provisions of this Section 5.1, the number of Warrant Shares issuable upon the
exercise of this Warrant shall be adjusted to the nearest full Warrant Share by
multiplying a number equal to the Exercise Price in effect immediately prior to
such adjustment by the number of Warrant Shares issuable upon exercise of the
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
(b) Reclassification, Consolidation, Merger,
etc. In case of any reclassification or change of the outstanding shares of
Common Stock (other than a change in par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), or in the
case of any consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger in which the Company
is the surviving corporation and which does not result in any reclassification
or change of the outstanding shares of Common Stock, except a change as a result
of a subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the Holder shall thereafter have the
right to purchase the kind and number of shares of stock and other securities
and property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as if the Holder were the owners of the Warrant
Shares underlying the Warrant at a price equal to the product of (i) the number
of shares of Common Stock issuable upon conversion of the Warrant Shares and
(ii) the Exercise Price prior to the record date for such reclassification,
change, consolidation, merger, sale or conveyance as if such Holder had
exercised the Warrant.
(c) Redemption of Warrant; Redemption of
Warrant Shares. Notwithstanding anything to the contrary contained in the
Warrant or elsewhere, the Warrant cannot be redeemed by the Company under any
circumstances.
(d) Dividends and Other Distributions with
Respect to Outstanding Securities. In the event that the Company shall at any
time prior to the exercise of the Warrant declare a dividend (other than a
dividend consisting solely of shares of Common Stock (which shall be governed by
Section 5.1) or a cash dividend or distribution payable out of current or
retained earnings) or otherwise distribute to its shareholders any monies,
assets, property, rights, evidences of indebtedness, securities (other than
shares of Common Stock), whether issued by the Company or by another person or
entity, or any other thing of value, the Holder of the Warrant shall thereafter
be entitled, in addition to the securities receivable upon the exercise thereof,
to receive, upon the exercise of such Warrant, the same monies, property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that he would have been entitled to receive at the time of such dividend
or distribution. At the time of any such dividend or distribution, the Company
shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 5.4.
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(e) Subscription Rights for Shares of Common Stock
or Other Securities. In the case that the Company or an affiliate of the
Company shall at any time after the date hereof and prior to the exercise of
the Warrant issue any rights to subscribe for shares of Common Stock or any
other securities of the Company or of such affiliate to all the shareholders
of the Company, the Holder of the unexercised Warrant shall be entitled, in
addition to the securities receivable upon the exercise of the Warrant, to
receive such rights at the time such rights are distributed to the other
shareholders of the Company.
6. Exchange and Replacement of Warrant Certificates. This
Warrant is exchangeable without expense, upon the surrender hereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Warrant Shares in such denominations as
shall be designated by the Holder thereof at the time of such surrender. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of the Warrant Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it, and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of the Warrant, if mutilated, the
Company will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof.
7. Elimination of Fractional Interests. The Company shall not
be required to issue certificates representing fractions of Warrant Shares upon
the exercise of this Warrant, nor shall it be required to issue scrip or pay
cash in lieu of fractional interests, it being the intent of the parties that
all fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of Warrant Shares.
8. Reservation of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrant, such number of
shares of Common Stock (or other securities) as shall be issuable upon such
exercise. The Company covenants and agrees that, upon exercise of the Warrant
and payment of the Exercise Price therefor, all shares of Common Stock issuable
upon such exercise shall be duly and validly issued, fully paid, non-assessable
and not subject to the preemptive rights of any shareholder.
9. Notices to Warrant Holder. If, at any time prior to the
expiration or exercise of this Warrant, any of the following events shall occur:
(a) the Company shall take a record of the holders of
its shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable
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for shares of capital stock of the Company, or any option, right or warrant to
subscribe therefore; or
(c) a dissolution, liquidation or winding up of the
Company(other than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as an entirety
shall be proposed; then, in any one or more of said events, the Company shall
give written notice to the Holder of such event at least fifteen (15) days prior
to the date fixed as a record date or the date of closing the transfer books for
the determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, options or
warrants, or entitled to vote on such proposed dissolution, liquidation, winding
up or sale. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. Failure to give such notice or any
defect therein shall not affect the validity of any action taken in connection
with the declaration or payment of any such dividend or distribution, or the
issuance of any convertible or exchangeable securities or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to the registered Holder of the Warrant, to the
address of such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the
signature page of this Warrant or to such other address as the Company may
designate by notice to the Holder.
11. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company and the Holder inure to the
benefit of their respective successors and assigns hereunder.
12. Governing Law. This Warrant shall be deemed to be a contract
made under the laws of the State of California and for all purposes shall be
construed in accordance with the laws of said State.
13. Counterparts. This Warrant may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed.
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THE RICEX COMPANY
Dated: __9/29/2000 ______ By: __/s/ Daniel L. McPeak, Sr._______
Daniel L. McPeak, Sr.
Chairman of the Board and
Chief Executive Officer
ACCEPTED BY AND AGREED TO:
INTERMARK PARTNERS, LLC
By: _/s/ Kenneth L. Miller____
Kenneth L. Miller, Member
GBV Intermark Fund, LLC
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ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase shares of Common Stock of
The RiceX Company (or its successor) and herewith tenders in payment for such
shares cash or a check payable to the order of The RiceX Company in the
amount of $_______ , all in accordance with the terms hereof. The undersigned
requests that a certificate for such shares be registered in the name of
whose address is and that such Certificate be delivered to , whose
address is .
Dated: Signature:
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
FORM OF ASSIGNMENT
(To be executed by the registered holder it such
holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED hereby sells, assigns and
transfers unto (Please print name and address of transferee)
this Warrant [or a portion of this Warrant equal to shares of Common Stock],
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint , Attorney, to transfer the within Warrant Certificate on
the books of the within-named Company, with full power of substitution.
Dated: Signature:
(Signature must conform in all
respects to name of holder
as specified on the face of
the Warrant Certificate)
(Insert Social Security or
Other Identifying Number of
Assignee)
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