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Item
1. |
Security
and Issuer |
The class
of equity securities to which this Schedule 13D relates is the common stock,
$0.001 par value (the “RiceX Common Stock”), of The RiceX Company, a Delaware
corporation (“RiceX”). The principal executive offices of RiceX are located at
1241 Hawk’s Flight Court, El Dorado Hills, California 95762.
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Item
2. |
Identity
and Background |
This
Schedule 13D is filed by NutraCea, a California corporation (“NutraCea”). The
address of the principal business and the principal office of NutraCea is 1261
Hawk’s Flight Court, El Dorado Hills, California 95762. NutraCea’s principal
business is the development and distribution of products based upon the use of
stabilized rice bran and proprietary rice bran formulations.
Attached
hereto as Exhibit
1 is a
list of all executive officers and directors of NutraCea, including the
principal business address, the principal occupation or employment and the
citizenship of each such person.
During
the five years prior to the date hereof, none of NutraCea nor, to the best of
its knowledge, any executive officer or director of NutraCea: (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction, as a result of which such person
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
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Item
3. |
Source
and Amount of Funds or Other
Consideration |
On April
4, 2005, NutraCea and RiceX entered into an Agreement and Plan of Merger and
Reorganization, dated as of April 4, 2005 (the “Merger Agreement”), by and among
NutraCea, Red Acquisition Corporation, a wholly-owned subsidiary of NutraCea
(“Merger Sub”), and RiceX, pursuant to which Merger Sub will merge with and into
RiceX (the “Merger”), with RiceX as the surviving corporation (the “Surviving
Corporation”). As a result of the Merger, RiceX will become a wholly-owned
subsidiary of NutraCea.
Simultaneously
with the execution of the Merger Agreement, on April 4, 2005, eight of RiceX’s
stockholders, option holders, and warrant holders (Todd C. Crow, Kirit S.
Kamdar, James C. Lintzenich, Ike E. Lynch, Daniel L. McPeak, Jr., Daniel L.
McPeak, Sr., Edward L. McMillan and Steven W. Saunders) (the “Stockholders”)
each entered into Voting Agreements with NutraCea (the “Voting Agreements”).
Pursuant to the Voting Agreements, each Stockholder has agreed to vote the
shares of RiceX Common Stock owned by such Stockholder in favor of the Merger,
the Merger Agreement and the transactions contemplated thereby (as more fully
described in Item 6 below).
The
descriptions of the Merger Agreement and the Voting Agreements contained in this
Schedule 13D are qualified in their entirety by reference to such agreements, a
copy or form of which appear as Exhibit
2 and
Exhibit
3 hereto,
respectively.
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Item
4. |
Purpose
of Transaction |
The
purpose of the Voting Agreements is to facilitate the adoption of the Merger
Agreement by the stockholders of RiceX.
At the
effective time of the Merger, the holders of shares of RiceX Common Stock will
receive shares of NutraCea Common Stock in exchange for their shares of RiceX
Common Stock, and NutraCea will assume certain of the outstanding options and
warrants to purchase RiceX Common Stock.
The
Merger Agreement provides that the initial directors of the Surviving
Corporation will consist of: (i) 1 director designated by NutraCea; (ii) 1
director designated by RiceX; and (iii) 1 director mutually designated by
NutraCea and RiceX. The Merger Agreement and the transactions contemplated
thereby have been approved by the boards of directors of both NutraCea and
RiceX; however, the transactions contemplated thereby are subject to: (i) the
approval of the respective stockholders of RiceX and NutraCea; (ii) the
expiration or termination of any applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iii) a
determination of the fairness of the terms and conditions of the Merger at a
hearing before the Commissioner of Corporations for the State of California;
(iv) holders of no more than 17% of the outstanding shares of NutraCea Common
Stock having exercised dissenters’ rights with respect to approval of the
Merger; (v) holders of no more than 5% of the outstanding shares of RiceX Common
Stock having exercised dissenters’ rights with respect to approval of the
Merger; (vi) NutraCea having available cash in an amount exceeding $2,500,000;
(vii) satisfaction by NutraCea of its secured debt financing by issuance of
NutraCea equity; (viii) satisfaction by NutraCea of all other
debt outstanding other than (a) trade payables incurred in the ordinary course
of business and (b) legal and investment banking fees incurred by NutraCea in
connection with the Merger Agreement and the transactions contemplated
thereby; and (ix)
other customary closing conditions, as more fully set forth in the Merger
Agreement.
Except as
indicated in this Schedule 13D or the exhibits hereto, NutraCea currently has no
specific plans or proposals that relate to or would result in any of the matters
described in subparagraphs (a) through (j) of the Instructions to Item 4 of
Schedule 13D.
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Item
5. |
Interest
in Securities of the Issuer |
(a)
NutraCea is or may be deemed to be the beneficial owner of an aggregate of
18,491,905
shares of
RiceX Common Stock, or 38.06% of the issued and outstanding shares of RiceX
Common Stock outstanding as of March 30, 2005. Such 18,491,905 shares are
comprised of no shares of which NutraCea is the actual beneficial owner, and an
additional 18,491,905 shares beneficially owned by the Stockholders which
NutraCea may be deemed to beneficially own as a result of entering into the
Voting Agreements. Of the 18,491,905 shares of RiceX Common Stock beneficially
owned by the Stockholders, 6,613,935 shares are presently owned by such
Stockholders and 11,877,970 shares are subject to acquisition by such
Stockholders within 60 days upon the exercise of outstanding warrants and
options. The percentage ownership calculation set forth in this paragraph is
based upon 36,713,274 shares of RiceX Common Stock outstanding as of March 30,
2005, plus an aggregate of 11,877,970 shares subject to acquisition by the
Stockholders within 60 days of March 30, 2005 upon the exercise of outstanding
warrants and options.
Patricia
McPeak, the Chief Executive Officer and the Chairperson of the Board of NutraCea
beneficially owns 1,665,870 shares of RiceX Common Stock, or 4.54% of the
outstanding shares of RiceX Common Stock as of March 30, 2005. The percentage
ownership calculation set forth in this paragraph is based upon 36,713,274
shares of RiceX Common Stock outstanding as of March 30, 2005.
Additionally,
Patricia McPeak may be deemed to be the beneficial owner of 4,170,725 shares of
RiceX Common Stock owned by Daniel McPeak, Sr., her husband, one of the
Stockholders and the Chairman of the Board of RiceX, or 10.65% of the issued and
outstanding shares of RiceX Common Stock as of March 30, 2005. Such 4,170,725
shares are comprised of 1,708,225 shares currently owned by Mr. McPeak, and
2,462,500 shares subject to acquisition by Mr. McPeak within 60 days upon the
exercise of outstanding warrants and options. Ms. McPeak disclaims any
beneficial ownership of such shares and this report should not be deemed an
admission that she is the beneficial owner of the shares held by family members
for purposes of Section 16 or for any other purpose. The percentage ownership
calculation set forth in this paragraph is based upon 36,713,274 shares of RiceX
Common Stock outstanding as of March 30, 2005, plus an aggregate of 2,462,500
shares subject to acquisition by Mr. McPeak within 60 days upon the exercise of
outstanding warrants and options.
Except as
set forth in this Schedule 13D, none of NutraCea, nor, to its best knowledge,
any executive officer or director of NutraCea, is the “beneficial owner” of any
shares of RiceX Common Stock, as such term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.
(b) Please
see Rows 7 through 10 of the cover page to this Schedule 13D.
(c) Neither
NutraCea, nor, to the best of its knowledge, any executive officer or director
thereof, has engaged in any transaction in RiceX Common Stock during the 60 day
period immediately preceding the date hereof except as described herein.
(d) Not
applicable.
(e) Not
applicable.
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Item
6. |
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities
of the Issuer |
On April
4, 2005, NutraCea, RiceX and Merger Sub entered into the Merger Agreement, as
more fully described in Item 4 above.
Also on
April 4, 2005, NutraCea entered into the Voting Agreements with the
Stockholders. Under the terms of the Voting Agreements, each Stockholder has
agreed to vote their shares of RiceX Common Stock: (i) in favor of approval of
the Merger and the adoption and approval of the Merger Agreement, and in favor
of each of the other actions contemplated by the Merger Agreement and such
Stockholder’s Proxy (as defined below) and any action required in furtherance
thereof; (ii) in favor of any matter that could reasonably be expected to
facilitate the Merger; (iii) against approval of any proposal made in opposition
to, or in competition with, consummation of the Merger or the transactions
contemplated by the Merger Agreement; (iv) against
any of the following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Merger Agreement): (a) any merger,
consolidation, business combination, sale of assets, reorganization or
recapitalization of RiceX or any subsidiary of RiceX with any party, (b) any
sale, lease or transfer of any significant part of the assets of RiceX or any
subsidiary of RiceX, (c) any reorganization, recapitalization, dissolution,
liquidation or winding up of RiceX or any subsidiary of RiceX, (d) any material
change in the capitalization of RiceX or any subsidiary of RiceX, or the
corporate structure of RiceX or any subsidiary of RiceX, or (e) any other action
that is intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement; and (v)
in favor of waiving any notice that may have been or may be required relating to
any reorganization of RiceX or any subsidiary of RiceX, any reclassification or
recapitalization of the capital stock of RiceX or any subsidiary of RiceX, any
sale of assets, change of control, or acquisition of RiceX or any subsidiary of
RiceX by any other person, or any consolidation or merger of RiceX or any
subsidiary of RiceX with or into any other person (collectively, the “Voting
Matters”).
In
connection with the Voting Agreements, on April 4, 2005, each Stockholder
executed an irrevocable proxy in favor of NutraCea (each a “Proxy”, and
together, the “Proxies”). Pursuant to the Proxies, each Stockholder has granted
to certain officers of NutraCea the power to vote and exercise all voting and
related rights, in connection with the Voting Matters, with respect to all of
the shares of capital stock of RiceX that are now or hereafter may be
beneficially owned by such Stockholder, until the Expiration Date (as defined in
the Proxies). The foregoing description of the Proxies is qualified in its
entirety by reference to such Proxies, the form of which appears as Exhibit
4 hereto.
Except as
described in this Schedule 13D, none of NutraCea, nor, to the best of its
knowledge, any executive officer or director thereof, has any other contracts,
arrangements, understandings or relationships with any persons with respect to
any securities of RiceX.
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Item
7. |
Material
to Be Filed as Exhibits |
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Exhibit
1 |
Information
Concerning Executive Officers and Directors of NutraCea (filed
herewith). |
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Exhibit
2 |
Agreement
and Plan of Merger and Reorganization, dated as of April 4, 2005, by and
among NutraCea, Red Acquisition Corporation and RiceX (incorporated herein
by reference to the Current Report on Form 8-K filed by NutraCea on April
4, 2005). |
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Exhibit
3 |
Form
of Voting Agreement dated as of April 4, 2005 between each Stockholder and
NutraCea (incorporated herein by reference and included as an exhibit to
Exhibit
“2” to
this Schedule 13D). |
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Exhibit
4 |
Form
of Irrevocable Proxy dated as of April 4, 2005 executed by each
Stockholder in favor of NutraCea (incorporated herein by reference and
included as an exhibit to Exhibit
“3” to
this Schedule 13D). |
Signature
After
reasonable inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
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April
29, 2005 |
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Date |
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/s/
Patricia McPeak |
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Signature |
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Patricia
McPeak, Chairman and Chief Executive Officer |
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Name/Title |
The
original statement shall be signed by each person on whose behalf the statement
is filed or his authorized representative. If the statement is signed on behalf
of a person by his authorized representative (other than an executive officer or
general partner of the filing person), evidence of the representative's
authority to sign on behalf of such person shall be filed with the statement:
provided, however, that a power of attorney for this purpose which is already on
file with the Commission may be incorporated by reference. The name and any
title of each person who signs the statement shall be typed or printed beneath
his signature.
Attention:
Intentional misstatements or omissions of fact constitute Federal criminal
violations (See 18 U.S.C. 1001)
EXHIBIT
INDEX
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Exhibit
1 |
Information
Concerning Executive Officers and Directors of NutraCea (filed
herewith). |
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Exhibit
2 |
Agreement
and Plan of Merger and Reorganization, dated as of April 4, 2005, by and
among NutraCea, Red Acquisition Corporation and RiceX (incorporated by
reference to the Current Report on Form 8-K filed by NutraCea on April 4,
2005). |
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Exhibit
3 |
Form
of Voting Agreement dated as of April 4, 2005 between each Stockholder and
NutraCea (incorporated by reference to the Current Report on Form 8-K
filed by NutraCea on April 4, 2005). |
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Exhibit
4 |
Form
of Irrevocable Proxy dated as of April 4, 2005 executed by each
Stockholder in favor of NutraCea (included as an exhibit to Exhibit
“3” to
this Schedule 13D). |