| Title of each class of securities to be registered | | Proposed Maximum Aggregate Offering Per Share(1) | | | Proposed maximum aggregate offering price(1) | | | Amount of registration fee | |
| Common stock, no par value | | | | | $ | 15,000,000 | | | $ | 2,046.00 | |
| Warrants to purchase common stock(2) | | | (4) | | | | (4 | ) | | | (5 | ) |
| Shares of common stock underlying warrants(2)(3) | | | | | | | | | | | | |
| Total | | | | | | $ | 15,000,000 | | | $ | 2,046.00 | |
| (1) | Estimated solely for the purpose of calculating the registration fee under Rule 457(o) of the Securities Act of 1933, as amended. |
| (2) | Includes [_____] shares of common stock and [_____] warrants which may be issued upon exercise of a 45-day option granted to the underwriters to cover over-allotments, if any. |
| (3) | Pursuant to Rule 416 under the Securities Act of 1933, as amended, the securities being registered hereunder include such indeterminate number of additional shares of common stock as may be issued after the date hereof as a result of stock splits, stock dividends or similar transactions. |
| (4) | The warrants to be issued to investors hereunder are included in the price of the common stock above. |
| (5) | No separate registration fee is required pursuant to Rule 457(g) promulgated under the Securities Act of 1933, as amended. |
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL AND IS NOT A SOLICITATION OF AN OFFER TO BUY IN ANY STATE IN WHICH AN OFFER, SOLICITATION, OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED SEPTEMBER 27, 2013
PRELIMINARY PROSPECTUS
__________ SHARES OF COMMON STOCK
WARRANTS TO PURCHASE __________ SHARES OF COMMON STOCK
We are offering _____ shares of our common stock, no par value per share, together with warrants to purchase ___ shares of our common stock. One share of common stock is being sold together with a warrant, with each warrant being immediately exercisable for ______ share of common stock at an exercise price of $_____ per share and will expire ___ months after the issuance date.
Our common stock is traded on the OTCQB Marketplace, operated by OTC Markets Group, under the symbol “RIBT”. On September 25, 2013, the last reported sales price for our common stock was $0.06 per share. We do not intend to list the warrants on any securities exchange or other trading market and we do not expect that a public trading market will develop for the warrants.
INVESTING IN THE OFFERED SECURITIES INVOLVES RISKS, INCLUDING THOSE SET FORTH IN THE “RISK FACTORS” SECTION OF THIS PROSPECTUS BEGINNING ON PAGE 4. INVESTORS SHOULD ONLY CONSIDER AN INVESTMENT IN THESE SECURITIES IF THEY CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
| | Per Share(1) | | | Per Warrant(1) | | | Total | |
| Public offering price | | $ | | | | $ | | | | $ | | |
| Underwriting discounts and commissions (2) | | $ | | | | $ | | | | $ | | |
| Proceeds, before expenses, to us(3) | | $ | | | | $ | | | | $ | | |
| (1) | One share of common stock is being sold together with a warrant, with each warrant being exercisable for the purchase of ___ share of common stock. |
| (2) | We have agreed to issue warrants to the underwriters and to reimburse the underwriters for certain expenses. See “Underwriting” on page ___ of this prospectus for a description of these arrangements. |
| (3) | We estimate the total expenses of this offering will be approximately $_________. |
The underwriters expect to deliver our securities, against payment, on or about ________, 2013.
We have granted the underwriters a 45-day option to purchase up to _____ additional shares of common stock and additional warrants to purchase up to _______ additional shares of common stock from us at the offering price for each security, less underwriting discounts and commissions, to cover over-allotments, if any.
Maxim Group LLC
The date of this prospectus is __________, 2013.
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__________ SHARES OF COMMON STOCK
WARRANTS TO PURCHASE _______ SHARES OF COMMON STOCK
ABOUT THIS PROSPECTUS
This summary highlights certain information appearing elsewhere in this prospectus. For a more complete understanding of this offering, you should read the entire prospectus carefully, including the risk factors and the financial statements. References in this prospectus to “we,” “us,” “our,” and “Company” refer to RiceBran Technologies and its subsidiaries. You should read both this prospectus and any prospectus supplement together with additional information described below under the heading "Where You Can Find More Information."
ABOUT RICEBRAN TECHNOLOGIES
Corporate Information
RiceBran Technologies’ principal executive office is located at 6720 N. Scottsdale Road, Suite # 390, Scottsdale, AZ 85253. Our telephone number is (602) 522-3000.
Company Overview
We are a human food ingredient, nutritional supplement and animal nutrition company that uses our proprietary and patented technologies for value-added processing of healthy, natural and nutrient dense products derived from raw rice bran (RRB), an underutilized by-product of the rice milling industry.
We have three reportable business segments: (i) USA, which manufactures and distributes stabilized rice bran (SRB) in various granulations along with other products derived from rice bran via proprietary and patented enzyme treatment processes; (ii) Brazil, which extracts crude rice bran oil (RBO) and defatted rice bran (DRB) from rice bran, which are then further processed into a number of valuable human food and animal nutrition products; and (iii) Corporate, which includes our corporate, administrative, regulatory and compliance functions.
The combined operations of our USA and Brazil segments encompass our bio-refining approach to processing RRB into various high quality value-added constituents and finished products. Over the past decade, we have developed and optimized our proprietary bio-refining processes to support the production of healthy, natural, hypoallergenic, gluten free, and non-genetically modified ingredients and supplements for use in human meats, baked goods, cereals, coatings, health foods, nutritional supplements, nutraceuticals and high-end animal nutrition and health products.
The manufacturing facilities included in our USA segment have proprietary and patented processing equipment and technology for the stabilization and further processing of rice bran into a number of food ingredient and derivative products. The USA segment consists of two locations in California and two locations in Louisiana, all of which can produce SRB. One of the two Louisiana SRB facilities, located in Lake Charles, has been idle since May 2009. The USA segment also includes our Dillon, Montana Stage II facility which produces our Stage II products RiSolubles, a highly nutritious, carbohydrate and lipid rich fraction of SRB, RiFiber, a fiber rich derivative of SRB, RiBalance, a complete rice bran nutritional package derived from further processing SRB, Proryza P-35, a water-dispersible 35% protein extract from SRB, and Proryza PF-20/50, a 20% protein and 50% insoluble dietary fiber extract of SRB. Stage II refers to the patented processes run at our Dillon, Montana facility and the products produced at that facility using our patented processes. In 2012, approximately 50% of USA segment revenue was from sales of human ingredient and derivative products and the other 50% was from sales of animal nutrition products. We expect human ingredient and derivative product sales to grow more rapidly than sales of animal nutrition products in the future.
The Brazil segment consists of the operation of our majority-owned subsidiary Industria Riograndens De Oleos Vegetais Ltda. (Irgovel), located in Pelotas, Brazil. Irgovel manufactures RBO and DRB products for both the human and animal food markets in Brazil and internationally. In refining RBO to an edible grade, several co-products are obtained. One such product is distilled fatty acids, a valuable raw material for the detergent industry. DRB is sold in bulk as animal feed and compounded with a number of other ingredients to produce complex animal nutrition products which are packaged and sold under Irgovel brands in the Brazilian market. In 2012, approximately 46% of Brazil segment product revenue was from sales of RBO products and 54% was from sales of DRB products. Irgovel is a wholly owned subsidiary of our holding company, Nutra SA. We own 50.3 % of Nutra SA with the remaining 49.7 % held by our minority equity partner Alothon Group and its affiliated entities. Alothon has certain rights associated with its equity ownership as more fully described in the “Ownership Interest in Nutra SA” under the “Business” section of this prospectus.
With the proceeds from this offering, we will be positioned to capitalize on specific market conditions that we expect will increase market acceptance of our products and lead to increased growth and profitability. These market conditions include: (i) increased global demand for vegetable oil, (ii) increased demand for new protein sources, (iii) consumer demand for “clean” labels on food products, and iv) demand for proprietary, evidence-based functional ingredients for nutraceuticals and functional foods.
Our growth strategy is multifaceted and involves: (i) a re-launch of our Nutraceuticals and Functional Foods (NFF) business through the acquisition and integration of H&N Distribution, Inc., an established co-packaging company that serves the NFF industry, (ii) the expansion of our global distribution network, (iii) the expansion of existing production facilities in both the USA and Brazil segments, iv) the investment in the development and commercialization of rice bran products in China in partnership with Wilmar-International, and v) continuing to generate evidence-based functionality of our proprietary products.
Recent Developments
In April 2013, we entered into a series of agreements with various affiliates of Wilmar-International Limited (collectively, Wilmar) under which we agreed to license to Wilmar all of our patented and proprietary intellectual property and know-how for stabilizing and further processing rice bran, including technologies resulting from recent research and development efforts regarding extraction and concentration of protein from rice bran. In return, Wilmar agreed to license to us (i) its intellectual property with respect to processing of rice bran, and its derivatives, based on the intellectual property licensed to Wilmar for use worldwide, excluding China and (ii) its other intellectual property with respect to processing of rice bran, and its derivatives, for use worldwide, excluding certain countries in Asia. Under the agreements, we obtained the right to purchase up to 45% of the capital stock of any entity Wilmar establishes to develop new products relating to rice bran or its derivative using the intellectual property licensed to Wilmar.
In July 2013, we amended our exclusive distribution agreement with Beneo-Remy, a 100% owned subsidiary of Sudzucker AG, a German public company, under which Beneo-Remy will exclusively distribute our SRB product and non-exclusively distribute our other products to more than 40 countries in Europe, the Middle East, Africa and other geographies. The amended agreement provides for minimum purchases of approximately $8.8 million by Beneo-Remy during the 4 year term of the agreement. As of September 26, 2013, Beneo-Remy has made approximately $400,000 in purchases under the agreement.
In August 2013, we entered into a multi-year purchase agreement with a rapidly growing US-based direct sales company to purchase a minimum of approximately $7.65 million of one of our patented Stage II products during the 40 month term of the agreement.
In September 2013, we entered into an exclusive distribution agreement with a Taiwanese marketing and distribution company to market another of our patented Stage II products in Taiwan.
On September 24, 2013, we entered into an Acquisition and Stock Purchase Agreement with H&N Distribution, Inc. (H&N) and the shareholders of H&N (the H&N Shareholders) pursuant to which the H&N Shareholders will sell 100% of the issued and outstanding shares of capital stock of H&N to us (the Purchase Agreement). H&N is engaged in the business of functional food blending and manufacturing, and the distribution of food ingredients and product. Under the Purchase Agreement, we agreed to purchase 100% of the H&N capital stock for $2,000,000 plus a number of shares of our common stock based on H&N’s adjusted EBITDA (as defined in the Purchase Agreement) for the calendar year ending December 31, 2013. The number of shares of our common stock that will be issued to the H&N Shareholders ranges from 37,500,000 to 47,500,000 shares. At closing, H&N’s current chief executive officer and founder, Mark McKnight, will join the Company as senior vice president of contract manufacturing and remain CEO of H&N. The closing of the Purchase Agreement remains subject to certain conditions including but not limited to the completion of our due diligence on H&N and our raising at least $7,500,000 in a financing. A portion of the proceeds from this offering will be used to satisfy the cash purchase price at the closing of the Purchase Agreement. Upon closing of the transaction, H&N will become part of our USA Segment.
By incorporating H&N’s formulating and packaging capabilities into our business model, we expect to drive sales of our Stage II products into multiple NFF channels allowing us to capture not only single ingredient sales but also sales of blended finished products consisting predominantly of our ingredients blended with other products and sold as a finished product on a business to business basis.
SUMMARY OF THE OFFERING
| Securities offered: | | _____ shares of our common stock together with warrants to purchase ____ shares of our common stock at an exercise price of $[*] per share. The warrants will be immediately exercisable and will expire ____ months after the issuance date. |
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| Common stock outstanding before the offering (1): | | __________ shares |
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| Common stock to be outstanding after the offering (1): | | __________ shares |
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| Underwriter’s Over-Allotment Option: | | The Underwriting Agreement provides that we will grant to the underwriter an option, exercisable within 45 days after the closing of this offering, to acquire up to an additional 15% of the total number of common stock and warrants to be offered by us pursuant to this offering, solely for the purpose of covering over-allotments. |
| | | |
| Use of proceeds: | | We intend to use a portion of the net proceeds from this offering for the following purposes: · approximately $_________________ to fund the cash portion of the purchase price for the acquisition of H&N Distribution, Inc. · approximately $__________________ for a capacity expansion project at the Dillon, Montana facility; · approximately $__________________ for other capital improvement and quality assurance projects in other US facilities; · approximately $__________________ for an additional capital contribution to Nutra SA, LLC (Nutra SA) to fund operations at its operating subsidiary Industria Riograndens De Oleos Vegetais Ltda. (Irgovel); and · approximately $__________________ for continued research and development to support certain product launches. |
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| OTCQB Symbol: | | RIBT |
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| Risk Factors: | | Investing in our securities involves substantial risks. You should carefully review and consider the “Risk Factors” section of this prospectus beginning on page 4 and the other information in this prospectus for a discussion of the factors you should consider before you decide to invest in this offering. |
(1) The total number of shares of our common stock outstanding after this offering is based on 226,781,297 shares outstanding as of September 26, 2013 and excludes as of that date the following:
| · | 36,118,641 shares of common stock issuable upon exercise of outstanding stock options, at a weighted average exercise price of $0.12 per share, under our equity incentive plans; |
| · | 24,940,600 additional shares of common stock reserved for future issuance under our equity incentive plans; |
| · | 88,094,553 shares of common stock (subject to adjustment) that are issuable upon conversion of outstanding convertible promissory notes; |
| · | 143,252,425 shares of common stock (subject to adjustment) issuable upon exercise of outstanding warrants, with current exercise prices ranging from $0.07 per share to $0.69 per share, which also contain certain anti-dilution provisions. |
| · | ___________ shares of common stock issuable upon exercise of the warrants issued to the public in connection with this offering; and |
| · | ___________ shares of common stock issuable upon exercise of the warrants to be received by the underwriters in connection with this offering. |
Except as otherwise indicated herein, all information in this prospectus assumes the underwriter does not sell any common stock contained in the over-allotment option and the warrants offered hereby are not exercised.
You should carefully consider and evaluate all of the information in this prospectus, including the risk factors listed below. Risks and uncertainties in addition to those we describe below, that may not be presently known to us, or that we currently believe are immaterial, may also harm our business and operations. If any of these risks occur, our business, results of operations and financial condition could be harmed, the price of our common stock could decline, and future events and circumstances could differ significantly from those anticipated in the forward-looking statements contained in this prospectus.
Risks Relating to Our Business
Our significant losses and negative cash flow raise questions about our ability to continue as a going concern.
Our net cash used in operating activities was approximately $4.8 million in 2012 and approximately $2.9 million for the first six months of 2013. We may not be able to achieve revenue growth, profitability or positive cash flow, on either a quarterly or annual basis, or that profitability, if achieved, will be sustained. If we are unable to achieve or sustain profitability, we may not be financially viable in the future and may have to curtail, suspend, or cease operations, restructure existing operations to attempt to ensure future viability, or pursue other alternatives such as re-filing for bankruptcy, pursuing dissolution and liquidation, seeking to merge with another company, selling all or substantially all of our assets or raising additional capital through equity or debt financings. Because of our recurring losses and negative cash flows from operations, the audit report of our independent registered public accountants on our consolidated financial statements for 2012 contains an explanatory paragraph stating that there is substantial doubt about our ability to continue as a going concern.
We have not yet achieved positive cash flows.
We have generated negative operating cash flows since our inception. We continue to assess our business to identify core and non-core assets. To raise additional cash funding we may be required to sell non-core assets and/or business units although there are no current plans do so. Additionally, we will need to reduce operating expenses and increase cash flow to fund current operations in our USA segment if we are not able to fund these operations by raising additional capital through equity or debt financings.
We have generated significant losses since our inception in 2000, and losses in the future could cause the trading price of our stock to decline or have a material adverse effect on our financial condition, our ability to pay our debts as they become due and on our cash flows.
Since we began operations in February 2000, we have incurred an accumulated deficit of $212 million and an accumulated other comprehensive loss of $2 million. We may not be able to achieve or maintain profitable operations if achieved. If our losses continue, our liquidity may continue to be severely impaired, our stock price may fall and our shareholders may lose all or a significant portion of their investment. If we are not able to attain profitability in the near future our financial condition could deteriorate further which could have a material adverse impact on our business and prospects and result in a significant or complete loss of your investment. Further, we may be unable to pay our debt obligations as they become due, which include obligations to secured creditors.
We may need to raise funds through debt or equity financings in the future to achieve our business objectives and to satisfy our cash obligations, which would dilute the ownership of our existing shareholders and possibly subordinate certain of their rights to the rights of new investors.
In addition to the funds raised in this offering, we likely will need to raise additional funds through debt or equity financings in order to complete our ultimate business objectives. We also may choose to raise additional funds in debt or equity financings if they are available to us on reasonable terms to increase our working capital, strengthen our financial position or to make acquisitions. Our board of directors has the ability, without seeking shareholder approval, to issue convertible debt and additional shares of common stock or preferred stock that is convertible into common stock for such consideration as the board of directors may consider sufficient, which may be at a discount to the market price. Any sales of additional equity or convertible debt securities would result in dilution of the equity interests of our existing shareholders, which could be substantial. Additionally, if we issue shares of preferred stock or convertible debt to raise funds, the holders of those securities might be entitled to various preferential rights over the holders of our common stock, including repayment of their investment, and possibly additional amounts, before any payments could be made to holders of our common stock in connection with an acquisition of us. Such preferred shares, if authorized, might be granted rights and preferences that would be senior to, or otherwise adversely affect, the rights and the value of our common stock. Also, new investors may require that we and certain of our shareholders enter into voting arrangements that give them additional voting control or representation on our board of directors.
We have had material weaknesses in our internal control over financial reporting in the past. Any material weaknesses in our internal control over financing reporting in the future could adversely affect investor confidence, impair the value of our common stock and increase our cost of raising capital.
In our Annual Report on Form 10-K for the year ended December 31, 2011, filed on March 30, 2012, our management identified material weaknesses in our internal control over financial reporting at our Brazilian subsidiary, Irgovel. While we believe we have since remediated such weaknesses, any future failure to remedy deficiencies in our internal control over financial reporting that may be discovered or our failure to implement new or improved controls, or difficulties encountered in the implementation of such controls, could harm our operating results, cause us to fail to meet our reporting obligations or result in material misstatements in our financial statements. Any such failure could, in turn, affect the future ability of our management to certify that internal control over our financial reporting is effective. Inferior internal control over financial reporting could also subject us to the scrutiny of the SEC and other regulatory bodies which could cause investors to lose confidence in our reported financial information and could subject us to civil or criminal penalties or shareholder litigation, which could have an adverse effect on our results of operations and the trading price of our common stock.
In addition, if we or our independent registered public accounting firm identify deficiencies in our internal control over financial reporting, the disclosure of that fact, even if quickly remedied, could reduce the market’s confidence in our financial statements and harm our share price. Furthermore, deficiencies could result in future non-compliance with Section 404 of the Sarbanes-Oxley Act of 2002. Such non-compliance could subject us to a variety of administrative sanctions, including review by the SEC or other regulatory authorities.
There are significant market risks associated with our business.
We have formulated our business plan and strategies based on certain assumptions regarding the size of the rice bran market, our anticipated share of this market, the estimated price and acceptance of our products and other factors. These assumptions are based on our best estimates, however our assessments may not prove to be correct. Any future success may depend upon factors including changes in the dietary supplement industry, governmental regulation, increased levels of competition, including the entry of additional competitors and increased success by existing competitors, changes in general economic conditions, increases in operating costs including costs of rice bran, production, supplies, personnel, equipment, and reduced margins caused by competitive pressures. Many of these factors are beyond our control.
We have entered into an Acquisition and Stock Purchase Agreement to acquire H&N Distribution, Inc., but such Agreement may not timely lead to acquisition of H&N Distribution, Inc.
On September 24, 2013, we entered into a certain Acquisition and Stock Purchase Agreement with the shareholders of H&N Distribution, Inc. (H&N), a company involved in functional food blending and manufacturing, and the distribution of food ingredients and products. Although the Acquisition and Stock Purchase Agreement is binding on all parties, the closing (and our acquisition of H&N) remains subject to several conditions, including completion of due diligence, absence of material adverse changes to H&N and other conditions set forth in the agreement including the consummation of a financing of at least $7,500,000. Therefore, we may not close the acquisition in a timely manner, or at all. Once the acquisition is consummated, we will face the integration risks discussed above, and it is not known how third parties, competitors, and costumers will respond to the acquisition.
We may face difficulties integrating businesses we acquire.
As part of our strategy, we expect to review opportunities to buy other businesses or technologies, such as the acquisition of H&N, that would complement our current products, expand the breadth of our markets or enhance technical capabilities, or that may otherwise offer growth opportunities. The H&N acquisition and other acquisitions involve numerous risks, including:
| · | problems combining the purchased operations, technologies or products; |
| · | diversion of management’s attention from our core business; |
| · | adverse effects on existing business relationships with suppliers and customers; |
| · | risks associated with entering markets in which we have no or limited prior experience; and |
| · | potential loss of key employees of purchased organizations. |
We may not that be able to successfully integrate H&N or any other businesses, products, technologies or personnel that we might acquire in the future.
We have significant foreign operations and there are inherent risks in operating overseas.
An important component of our business strategy is to build rice bran stabilization and rice bran oil facilities in foreign countries and to market and sell our products internationally. For example, we have an operation in Brazil which manufactures rice bran oil. There are risks in operating facilities in foreign countries because, among other reasons, we may be unable to attract sufficient qualified personnel, intellectual property rights may not be enforced as we expect, and legal rights may not be available as contemplated. Should any of these risks occur, our ability to expand our foreign operations may be materially limited and we may be unable to maximize the output from these facilities and our financial results may decrease from our anticipated levels. The inherent risks of international operations could materially adversely affect our business, financial condition and results of operations. The types of risks faced in connection with international operations and sales include, among others:
| · | cultural differences in the conduct of business; |
| · | fluctuations in foreign exchange rates; |
| · | greater difficulty in accounts receivable collection and longer collection periods; |
| · | challenges in obtaining and maintaining financing; |
| · | impact of recessions in economies outside of the United States; |
| · | reduced or obtainable protection for intellectual property rights in some countries; |
| · | unexpected changes in regulatory requirements; |
| · | tariffs and other trade barriers; |
| · | political conditions in each country; |
| · | management and operation of an enterprise spread over various countries; |
| · | the burden and administrative costs of complying with a wide variety of foreign laws; and |
Brazilian economic, political and other conditions, and Brazilian government policies or actions in response to these conditions, may negatively affect our business and results of operations.
The Brazilian economy has historically been characterized by interventions by the Brazilian government and unstable economic cycles. The Brazilian government has often changed monetary, taxation, credit, tariff and other policies to influence the course of Brazil’s economy. For example, the government’s actions to control inflation have at times involved setting wage and price controls, blocking access to bank accounts, imposing exchange controls and limiting imports into Brazil. We have no control over, and cannot predict, what policies or actions the Brazilian government may take in the future.
Our Brazilian Segment’s business, results of operations, financial condition and prospects may be adversely affected by, among others, the following factors:
| · | exchange rate movements; |
| · | exchange control policies; |
| · | expansion or contraction of the Brazilian economy, as measured by rates of growth in GDP; |
| · | other economic political, diplomatic and social developments in or affecting Brazil; |
| · | liquidity of domestic capital and lending markets; |
| · | changes in environmental regulation; and |
| · | social and political instability. |
Our interests in Nutra SA are subject to certain drag along rights and we may receive little or no proceeds from such sale.
Beginning on January 1, 2014, or earlier in the event of a default or a qualifying event as described in the Nutra SA Membership Interest Purchase Agreement, should the other investors in Nutra SA desire to sell 100% of Nutra SA to a third party, we are obligated to cooperate in the negotiation and sale of Nutra SA in accordance with the terms of such sale as agreed to thereby. In the event of a sale, the other investors in Nutra SA are entitled to a preferential return of any proceeds received from the sale of Nutra SA in an amount equal to a minimum of 2 times and a maximum of 2.3 times such investors’ unreturned capital which will be distributed first to such investors until the preferential return has been paid in full. The unreturned capital balance for the other investors is currently $13,425,000. Because of these drag along rights, we will only receive a certain portion of the proceeds if the sales proceeds are greater than the amount of such preferential return, and it is possible that we will receive no or little proceeds from the sale of Nutra SA.
Our interests in our subsidiaries other than Nutra SA may be diluted.
Pursuant to the Nutra SA Investor Rights Agreement dated January 18, 2011, the investors of Nutra SA may convert their membership interests in Nutra SA into interests of each our subsidiaries. The conversion occurs on a percentage/numerical basis, rather than on a value basis, meaning that the other investors of Nutra SA are entitled to an equity interest in our other subsidiaries such that their percentage ownership in each of our other subsidiaries equals the percentage ownership in Nutra SA immediately prior to the conversion. Therefore the impact thereof is difficult to predict. Should one or more of our other subsidiaries become more profitable relative to Nutra SA, the other investors may elect to convert their interests from Nutra SA into equity interests of our subsidiaries which would dilute our ownership of our subsidiaries and lower the profits we would otherwise have received therefrom.
The capital expansion project and planned temporary shutdown at our Irgovel facility could adversely affect our business, financial condition or results of operations.
Irgovel is currently undergoing a capital expansion project involving installation of new equipment and improvements to existing infrastructure. As a result of the project, we expect production at the Irgovel facility to shutdown for approximately 7 weeks while certain new equipment is brought on line. The timing of this shutdown is scheduled to occur in late December 2013, and is subject to change based on availability of funds, the timing of the delivery of equipment from suppliers, the availability of installers and other factors. Where possible, we intend to stockpile certain inventory for sale during the period the plant is shutdown. However, this inventory may not be adequate to timely fulfill all outstanding orders during this period. In addition, during such shutdown, we will have to continue to expend capital to maintain the Irgovel facility and equipment. Facility shutdown and subsequent restart expenses may adversely affect our periodic results when these events occur.
The installation of new equipment at the Irgovel facility involves significant uncertainties. For example, our new equipment may not perform as expected or may differ from design and/or specifications. If we are required to redesign or modify the equipment to ensure that it performs as expected, we may need to further shutdown the facility until the equipment has been redesigned or modified as necessary. The costs related to the capital expansion project are uncertain and the costs may increase beyond those projected.
If we fail to fund the Irgovel capital expansion project, the investors of Nutra SA may obtain certain rights with respect to Irgovel, including the right to participate in the operations of Irgovel.
Irgovel will need additional financing and/or capital to complete the capital expansion project and meet working capital needs during the planned shutdown. We have certain commitments to provide no less than $500,000 by November 15, 2013 to Irgovel to meet these funding requirements under our agreements with the investors in Nutra SA. If instead, the investors fund the cash shortfall at Irgovel they may obtain certain rights, including the right to force the sale of all of Nutra SA’s assets and the right to substantively participate in the operations of Irgovel and Nutra SA. Any of the foregoing risks associated with the capital expansion project could lead to lower revenues or higher costs or otherwise have a negative impact on our future results of operations and financial condition.
Irgovel has certain financial performance obligations which if not met may lead to us losing management control over Irgovel.
Irgovel is owned by Nutra SA. Nutra SA is owned by us and certain other investors. Under the limited liability company agreement for Nutra SA, as amended, Irgovel must satisfy certain financial performance requirements in order for us to maintain control over Irgovel. These financial performance requirements include Irgovel’s satisfaction of revenue, earnings and net debt targets described in the Membership Interest Purchase Agreement dated December 29, 2010, as amended (the Nutra SA Membership Interest Purchase Agreement). If Irgovel fails to meet these financial requirements, we could lose management control over Irgovel’s operations, and management control would transfer to the other investors in Nutra SA. Any such change in management control would cause us to no longer consolidate Irgovel’s financial results with our financial results. Instead, we would be required to account for Irgovel as an equity investment on our balance sheets which may negatively impact our share price.
Our business could be affected adversely by labor disputes, strikes or work stoppages in Brazil.
All of our employees at our Irgovel facility in Brazil are represented by a labor union and are covered by a collective bargaining agreement. As a result, we are subject to the risk of labor disputes, strikes, work stoppages and other labor-relations matters. Our collective bargaining agreement in Brazil typically has a one-year term and requires that we provide wage adjustments each year. We may be unable to negotiate new collective bargaining agreements on similar or more favorable terms and may experience work stoppages or other labor problems in the future. We could experience a disruption of our operations or higher ongoing labor costs, which could have a material adverse effect on our operating results and financial condition, potentially resulting in cancelled orders by customers, unanticipated inventory accumulation or shortages and reduced revenues and net income.
Fluctuations in foreign currency exchange could adversely affect our financial results.
We earn revenues, pay expenses, own assets and incur liabilities in countries using currencies other than the U.S. dollar, including primarily the Brazilian Real. Currently, a significant portion of our revenues and expenses occur in our Brazilian subsidiary, Irgovel. Because our consolidated financial statements are presented in U.S. dollars, we must translate revenues, income and expenses, as well as assets and liabilities, into U.S. dollars at exchange rates in effect historically, during or at the end of each reporting period. Therefore, increases or decreases in the value of the U.S. dollar against the Brazilian real and any other currency which affects a material amount of our operations, will affect our revenues, cost of sales, gross profit (loss), operating expenses, or other income and expenses and the value of balance sheet items denominated in foreign currencies. These fluctuations may have a material adverse effect on our financial results. Disruptions in financial markets may result in significant changes in foreign exchange rates in relatively short periods of time which further increases the risk of an adverse currency effect. Since we plan to expand our international operations, we will likely increase our exposure to foreign currency risks. We do not hedge our currency risk, and do not expect to, as currency hedges are expensive and do not necessarily reduce the risk of currency fluctuations over longer periods of time.
We depend on a limited number of customers.
As of December 31, 2012 and June 30, 2013, three customers accounted for 40% of USA segment revenues. In our Brazil segment, three customers accounted for 38% and 34% of segment revenues as of December 31, 2012 and June 30, 2013 respectively. As of December 31, 2012 and June 30, 2013, the top ten USA segment customers accounted for 77% and 64% respectively of segment accounts receivable and 63% and 62% respectively of segment revenues. As of December 31, 2012 and June 30, 2013 in our Brazil segment, out top ten customers accounted for 75% and 51% respectively of segment accounts receivable and 57% and 49% respectively of segment revenues.
Although we continue to expand our customer base in an attempt to mitigate the concentration of customers, the loss of any one of these customers could have an adverse effect on our revenues and results of operations.
The inability of our significant customers to meet their obligations to us may adversely affect our financial results.
We are subject to credit risk due to concentration of our trade accounts receivables. Although the accounts our significant customers are current, the inability of our significant customers and obligors to meet their future obligations to us, may adversely affect our financial condition and results of operations.
We may encounter difficulties in maintaining relationships with distributors and customers while enforcing our credit policies.
We define credit risk as the risk of loss from obligors or counterparty default. Our credit risks arise from both distributors and consumers. Many of these risks and uncertainties are beyond our control. Our ability to forecast future trends and spot shifts in consumer patterns or behavior even before they occur are vital for success in today's economy. In managing risk, our objective is to protect our profitability, but also to protect, to the extent we can, our ongoing relationships with our distributors and customers. However, as part of our credit risk policies, we occasionally must, among other things, cancel, reduce credit limits and place cash only requirements for certain questionable accounts. These credit risk policies may negatively impact our relationships with our distributors and customers, which could adversely affect our results of operations.
We rely upon a limited number of product offerings.
The majority of the products that we have sold through June 30, 2013 have been based on SRB produced at our US facilities and extracted RBO from Irgovel. A decline in the market demand for our SRB and RBO products, as well as the products of other companies utilizing our SRB and RBO products, would have a significant adverse impact on us.
Our ability to generate sales is dependent upon our ability to continue our ongoing marketing efforts to raise awareness of our products and benefits of rice bran products generally.
We are dependent on our ability to market products to animal food producers, food manufacturers, mass merchandise and health food retailers, and to other companies for use in their products. We must increase the level of awareness of dietary supplements in general and our products in particular. We will be required to devote substantial management and financial resources to these marketing and advertising efforts and such efforts may not be successful. Further, because of our current cash position, we may face difficulties maintaining a sales force sufficient to effectively market our products as intended.
Our ability to adapt to sudden increases in demand of our product is limited by an adequate supply of raw rice bran and our ability to find additional facilities for production.
Many of our current products depend on our proprietary technology using raw rice bran, which is a by-product from milling paddy rice to white rice. Our ability to manufacture SRB is currently limited to the production capability of our equipment located at our two suppliers’ rice mills in California and our own plant located adjacent to our supplier in Mermentau, Louisiana. Along with our value-added product plants in Dillon, Montana and our facility in Pelotas, Brazil, we currently are capable of producing enough finished products to meet current demand. If demand for our products were to increase dramatically in the future, we would need additional production capacity which may take time and may expose us to additional long term operating costs.
We may not be able to continue to secure adequate sources of raw rice bran to meet our future demand. Since rice bran has a limited shelf life, the supply of rice bran is affected by the amount of rice planted and harvested each year. If economic or weather conditions adversely affect the amount of rice planted or harvested, the cost of rice bran products that we use may increase. We are not always able to immediately pass cost increases to our customers and any increase in the cost of SRB products could have an adverse effect on our results of operations.
We face competition from other companies that produce bran, grains and other alternative ingredients with similar benefits as our rice brans.
Competition in our targeted industries, including nutraceuticals, functional food ingredients, rice bran oils, animal feed supplements and companion pet food ingredients is vigorous, with a large number of businesses engaged in the various industries. Many of our competitors have established reputations for successfully developing and marketing their products, including products that incorporate bran from other cereal grains and other alternative ingredients that are widely recognized as providing similar benefits as rice bran. In addition, many of our competitors have greater financial, managerial, and technical resources than we do. If we are not successful in competing in these markets, we may not be able to attain our business objectives.
We must comply with our contractual obligations.
We have numerous ongoing contractual obligations under various purchase, sale, supply, production and other agreements which govern our business operations. We also have contractual obligations which require ongoing payments such as various debt agreements and lease obligations and the agreement of Irgovel to pay tax obligations to the Brazilian government. While we seek to comply at all times with these obligations, we may not be able to comply with the terms of all contracts during all periods of time, especially if there are significant changes in market conditions or our financial condition. If we are unable to comply with our material contractual obligations, there likely would be a material adverse affect on our financial condition and results of operations.
We have a high concentration of credit risk.
We currently depend on a limited number of customers. This results in a concentration of credit risk with respect to our outstanding accounts receivable. We consider the financial strength of the customer, the remoteness of the possible risk that a default event will occur, the potential benefits to our future growth and development, possible actions to reduce the likelihood of a default event and the benefits from the transaction before entering into a large credit limit for a customer. Although we analyze these factors, the ultimate collection of the obligation from the customer may not occur. Although we continue to expand our customer base in an attempt to mitigate the concentration of credit risk, the writing off of an accounts receivable balance could have an adverse effect on our results of operations. Financial instruments that potentially subject us to concentration of credit risk consist primarily of cash and cash equivalents and trade receivables. Historically, we have not experienced any loss of our cash and cash equivalents, but we have experienced losses to our trade receivables.
Our products could fail to meet applicable regulations which could have a material adverse affect on our financial performance.
The dietary supplement and cosmetic industries are subject to considerable government regulation, both as to efficacy as well as labeling and advertising. Our products and marketing strategies might not satisfy all of the applicable regulations of the Dietary Supplement, Health and Education Act, the Federal Food, Drug and Cosmetic Act, the U.S. Food and Drug Administration, the U.S. Federal Trade Commission, the Brazilian National Health Surveillance Agency and/or other foreign regulatory agencies. Failure to meet any applicable regulations would require us to limit the production or marketing of any non-compliant products or advertising, which could subject us to financial or other penalties.
We may be subject to product liability claims and product recalls.
We sell food and nutritional products for animal and human consumption, which involves risks such as product contamination or spoilage, product tampering and other adulteration of food products. We may be subject to liability if the consumption of any of our products causes injury, illness or death. We maintain a product liability policy for $5,000,000 per year in the aggregate. In addition, we may voluntarily recall products in the event of contamination or damage. A significant product liability judgment or a widespread product recall may cause a material adverse affect on our financial condition. Even if a product liability claim is unsuccessful, there may be negative publicity surrounding any assertion that our products caused illness or injury which could adversely affect our reputation with existing and potential customers.
Many of the risks of our business have only limited insurance coverage and many of our business risks are uninsurable.
Our business operations are subject to potential product liability, environmental, fire, employee, manufacturing, shipping and other risks. Although we have insurance to cover some of these risks, the amount of this insurance is limited and includes numerous exceptions and limitations to coverage. Further, no insurance is available to cover certain types of risks, such as acts of God, war, terrorism, major economic and business disruptions, and similar events. In the event we were to suffer a significant uninsured claim, our financial condition would be materially and adversely affected.
Our success depends in part on our ability to obtain, enforce and protect our patents, licenses and other intellectual property rights for our products and technology.
Our success is dependent upon our ability to protect and enforce the patents, trade secrets and trademarks that we have and to develop and obtain new patents and trademarks for future processes, machinery, compounds and products that we develop. The process of seeking patent protection may be long and expensive, and patents might not be issued or be broad in scope. We may not be able to protect our technology adequately, and our competition may be able to develop similar technology that does not infringe or encroach upon any of our rights.
There currently are no claims or lawsuits pending or threatened against us regarding possible infringement claims, but infringement claims by third parties, or claims for indemnification resulting from infringement claims, could be asserted in the future or that such assertions, if proven to be accurate, will not have a material adverse affect on our business, financial condition and results of operations. In the future, litigation may be necessary to enforce our patents, to protect our trade secrets or know-how or to defend against claimed infringement of the rights of others and to determine the scope and validity of the proprietary rights of others. Any litigation could result in substantial cost and diversion of our efforts and other resources, which could have a material adverse affect on our financial condition and results of operations. Adverse determinations in any litigation could result in the loss of our proprietary rights, subjecting us to significant liabilities to third parties, require us to seek licenses from third parties or prevent us from manufacturing or selling our systems, any of which could have a material adverse affect on our financial condition and results of operations. A license under a third party’s intellectual property rights might not be available to us on reasonable terms, if at all.
We are dependent on key employees.
Our success depends upon the efforts of our top management team and certain other key employees, including the efforts of John Short (Chief Executive Officer), Dale Belt (Chief Financial Officer), Dave Hutchinson (Senior Vice President of Operations), Robert Smith, PhD (Senior Vice President of Business Development) and Colin Garner (Senior Vice President of Sales and Marketing). Although we have written employment agreements with our CEO and CFO, such individuals could die, become disabled, or resign. In addition, our success is dependent upon our ability to attract and retain key management persons for positions relating to the marketing and distribution of our products. We may not be able to recruit and employ such executives at times and on terms acceptable to us. Also, volatility, lack of positive performance in our stock price and changes in our overall compensation program, including our equity incentive program, may adversely affect our ability to retain such key employees.
Compliance with corporate governance and public disclosure regulations may result in additional expenses.
Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002, and new regulations issued by the SEC, such as Dodd-Frank, are creating uncertainty for companies. In order to comply with these laws, we may need to invest substantial resources to comply with evolving standards, and this investment would result in increased general and administrative expenses and a diversion of management time and attention from revenue-generating activities to compliance activities.
Our officers and directors have limited liability and have indemnification rights.
Our articles of incorporation and bylaws provide that we may indemnify our officers and directors against losses sustained or liabilities incurred which arise from any transaction in that officer’s or director’s respective managerial capacity unless that officer or director violates a duty of loyalty, did not act in good faith, engaged in intentional misconduct or knowingly violated the law, approved an improper dividend, or derived an improper benefit from the transaction.
Risks Relating to this Offering
We may allocate net proceeds from this offering in ways which differ from our estimates based on our current plans and assumptions discussed in the section entitled “Use of Proceeds” and with which you may not agree.
The allocation of net proceeds of the offering set forth in the “Use of Proceeds” section below represents our estimates based upon our current plans and assumptions regarding industry and general economic conditions, our future revenues and expenditures. The amounts and timing of our actual expenditures will depend on numerous factors, including market conditions, cash generated by our operations, business developments and related rate of growth. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes. Circumstances that may give rise to a change in the use of proceeds and the alternate purposes for which the proceeds may be used are discussed in the section entitled “Use of Proceeds” below. You may not have an opportunity to evaluate the economic, financial or other information on which we base our decisions on how to use our proceeds. As a result, you and other stockholders may not agree with our decisions. See “Use of Proceeds” for additional information.
Future sales by our stockholders may adversely affect our stock price and our ability to raise funds in new stock offerings.
Sales of our common stock in the public market following this offering could lower the market price of our common stock. Sales may also make it more difficult for us to sell equity securities or equity-related securities in the future at a time and price that our management deems acceptable or at all. Of the approximately 226,781,297 shares of common stock outstanding as of September 26, 2013, all of which are, or will be, freely tradable without restriction, unless held by our “affiliates.” Some of these shares may be resold under Rule 144 of the Securities Act of 1933, as amended. The sale of 88,094,553 shares issuable upon conversion of our outstanding convertible notes and 179,371,065 shares issuable upon exercise of outstanding options and warrants could also lower the market price of our common stock.
You will experience immediate and substantial dilution as a result of this offering and may experience additional dilution in the future.
You will incur immediate and substantial dilution as a result of this offering. After giving effect to the sale by us of up to __________ shares of common stock and corresponding warrants offered in this offering at a public offering price of $____ per share, and after deducting underwriter commissions and estimated offering expenses payable by us, investors in this offering can expect an immediate dilution of $___ per share, or __%, at the public offering price, assuming no exercise of the warrants. In addition, in the past, we issued options and warrants to acquire shares of common stock and may need to do so in the future to support our operations. To the extent these options and/or warrants are ultimately exercised, you will sustain future dilution.
There is no public market for the warrants to purchase common stock in this offering.
There is no established public trading market for the warrants being offered in this offering, and we do not expect a market to develop. In addition, we do not intend to apply to list the warrants on any securities exchange. If the registration statement covering the shares issuable upon exercise of the warrants is no longer effective, the warrants will be issued with restrictive legends unless such warrants are eligible for sale under Rule 144.
Holders of warrants will have no rights as common stockholders until such holders exercise their warrants and acquire our common stock.
Until holders of warrants acquire shares of our common stock upon exercise of the warrants, holders of warrants will have no rights with respect to the shares of our common stock underlying such warrants. Upon exercise of the warrants, the holders will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs after the exercise date.
The warrants included in this offering may not have any value.
The warrants will expire on _______, 20__. In the event our common stock price does not exceed the exercise price of the warrants during the period in which the warrants are exercisable, the warrants may not have any value.
Risks Relating to Our Stock
Our stock price is volatile.
The market price of our common stock has fluctuated significantly in the past and may continue to fluctuate significantly in the future. Our common stock trades on the OTCQB. Our common stock is thinly traded and subject to volatility in price and demand. See “Price Range of Our Common Stock”.
The market price of a share of our common stock may continue to fluctuate in response to a number of factors, including:
| · | announcements of new products or product enhancements by us or our competitors; |
| · | fluctuations in our quarterly or annual operating results; |
| · | developments in our relationships with customers and suppliers; |
| · | our ability to obtain financing; |
| · | the loss of services of one or more of our executive officers or other key employees; |
| · | announcements of technological innovations or new systems or enhancements used by us or our competitors; |
| · | developments in our or our competitors’ intellectual property rights; |
| · | adverse effects to our operating results due to impairment of goodwill; |
| · | failure to meet the expectation of securities analysts’ or the public; |
| · | general economic and market conditions; |
| · | our ability to expand our operations, domestically and internationally; |
| · | the amount and timing of expenditures related to any expansion; |
| · | litigation involving us, our industry or both; |
| · | actual or anticipated changes in expectations by investors or analysts regarding our performance; and |
| · | price and volume fluctuations in the overall stock market from time to time. |
In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that company. Our stock price is volatile and we have been the target of shareholder litigation. Any shareholder litigation brought against us in the future could result in substantial costs and divert our management’s attention and resources from our business.
We have significant “equity overhang” which could adversely affect the market price of our common stock and impair our ability to raise additional capital through the sale of equity securities.
As of September 26, 2013, we had 226,781,797 shares of common stock outstanding. Additionally, as of September 26, 2013, approximately 267,465,618 shares of our common stock were issuable upon exercise or conversion of outstanding options, warrants and convertible debt. The possibility that substantial amounts of our common stock may be sold by investors or the perception that such sales could occur, often called “equity overhang,” could adversely affect the market price of our common stock and could impair our ability to raise additional capital through the sale of equity securities in the future. In addition, commencing upon the earlier of January 2014 or upon an event of default under the limited liability agreement, the other investors in Nutra SA may elect to exchange their units in Nutra SA for shares of our common stock at a price to be determined based on the appraised fair value of Nutra SA which would significantly increase the amount of our common stock outstanding and the amount of the equity overhang.
Our outstanding options, warrants and convertible notes may dilute current shareholders.
As of September 26, 2013, there were outstanding options, warrants and convertible debt that are exercisable for a total of approximately 267,465,618 shares of our common stock.
The outstanding common stock warrants issued in our May 2009 financings and the convertible debt and common stock warrants issued in our 2012 and 2013 financings contain anti-dilution provisions that cause the exercise prices and conversion prices of the warrants and convertible debt to decrease automatically if we issue shares of our common stock or securities convertible into shares of our common stock in a financing at prices below the exercise and conversion prices of these warrants and convertible debt. These adjustments automatically cause the number of shares issuable upon exercise of these warrants and convertible debt to proportionately increase. Any such adjustment would materially dilute the holders of our common stock.
Our interests in certain of our subsidiaries have been pledged to secure obligations under certain credit agreements.
We have issued convertible notes and debentures which are secured against substantially all of the assets of certain of our subsidiaries. In the event of default under such notes and debentures, the holders may foreclose upon such interests to secure the obligations under the notes and debentures.
Because the SEC imposes additional sales practice requirements on brokers who deal in our shares, which are penny stocks, some brokers may be unwilling to trade them. This means that you may have difficulty reselling your shares and may cause the price of the shares to decline.
Our stock is a penny stock. The SEC generally defines “penny stock” to be any equity security that has a market price less than $5.00 per share or an exercise price of less than $5.00 per share, subject to certain exceptions. Our securities are covered by the penny stock rules, which impose additional sales practice requirements on broker-dealers who sell to persons other than established customers and “accredited investors”. The term “accredited investor” refers generally to institutions with assets in excess of $5,000,000 or individuals with a net worth in excess of $1,000,000 (excluding the value of their primary residence) or annual income exceeding $200,000 or $300,000 jointly with their spouse. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document in a form prepared by the SEC which provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction and monthly account statements showing the market value of each penny stock held in the customer’s account. The bid and offer quotations and the broker-dealer and salesperson compensation information must be given to the customer orally or in writing prior to effecting the transaction and must be given to the customer in writing before or with the customer’s confirmation. In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from these rules, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction. These disclosure requirements may have the effect of reducing the level of trading activity in the secondary market for the stock that is subject to these penny stock rules. Consequently, these penny stock rules may affect the willingness of broker-dealers to trade our securities. We believe that the penny stock rules discourage investor interest in, and limit the marketability of, our common stock.
In addition to the “penny stock” rules promulgated by the SEC, FINRA has adopted rules that require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative, low-priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative low-priced securities will not be suitable for at least some customers. The FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our common stock, which may limit your ability to buy and sell our stock. These factors may result in an investor who satisfies the conditions of Rule 144 promulgated under the Securities Act still being unable or having difficulty liquidating his or her “restricted” shares purchased in this offering.
The authorization and issuance of preferred stock may have an adverse effect on the rights of holders of our common stock.
Our board of directors, without further action or vote by holders of our common stock, has the right to establish the terms, preference, rights and restrictions and issue shares of preferred stock. The terms of any series of preferred stock could be issued with terms, rights, preferences and restrictions that could adversely affect the rights of holders of our common stock and thereby reduce the value of our common stock. The designation and issuance of preferred stock favorable to current management or shareholders could make it more difficult to gain control of our board of directors or remove our current management and may be used to defeat hostile bids for control which might provide shareholders with premiums for their shares. We have designated and issued five series of preferred stock, no shares of which remain outstanding as of September 26, 2013. We may issue additional series of preferred stock in the future.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain forward-looking statements that involve substantial risks and uncertainties. All statements, other than statements of historical facts, included in this prospectus, including, without limitation, statements regarding the assumptions we make about our business and economic model, our dividend policy, business strategy and other plans and objectives for our future operations, are forward-looking statements.
These forward-looking statements include declarations regarding our management’s beliefs and current expectations. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “would,” “could,” “expects,” “plans,” “contemplates,” “anticipates,” “believes,” “estimates,” “predicts,” “projects,” “intend” or “continue” or the negative of such terms or other comparable terminology, although not all forward-looking statements contain these identifying words. Forward-looking statements are subject to inherent risks and uncertainties in predicting future results and conditions that could cause the actual results to differ materially from those projected in these forward-looking statements. Some, but not all, of the forward-looking statements contained in this prospectus and the documents incorporated by reference herein include, among other things, statements about the following:
| · | our significant losses and negative cash flow raise questions about our ability to continue as a going concern; |
| · | the risk that we will be unable to pay our debt obligations as they become due or that we will be able to find sufficient financing to fund our operations; |
| · | the risks associated with foreign operations; |
| · | the effect certain conversions of securities may have on us, whether the conversion be pursuant to options, warrants, or contractual obligation and whether the conversion occurs at the parent or subsidiary levels; |
| · | future sale of a substantial number of shares of our common stock that could depress the trading price of our common stock, lower our value and make it more difficult for us to raise capital our reliance on certain key customers |
| · | regulatory compliance costs; |
| · | product liability claims and product recalls; |
| · | outstanding pledges and obligations to lenders; and |
| · | the other matters described in “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “Business.” |
You should also read the matters described in “Risk Factors” and the other cautionary statements made in this prospectus as being applicable to all related forward-looking statements wherever they appear in this prospectus. The forward-looking statements in this prospectus may not prove to be accurate and therefore you are encouraged not to place undue reliance on forward-looking statements. You should read this prospectus completely
We estimate that we will receive up to $__________ in net proceeds from the sale of common stock and corresponding warrant in this offering, based on an assumed price of $_____ per share of common stock and corresponding warrant and after deducting estimated underwriter fees and estimated offering expenses payable by us. We cannot predict when or if the warrants will be exercised. It is possible that the warrants may expire and may never be exercised.
We intend to use the net proceeds from this offering for the following purposes:
| · | approximately $__________________to fund the cash portion of the purchase price for the acquisition of H&N Distribution, Inc.; |
| · | approximately $__________________ for an additional capital contribution to Nutra SA to fund operations at Irgovel; |
| · | approximately $__________________for a capacity expansion project at the Dillon, Montana facility; |
| · | approximately $__________________for other capital improvement and quality assurance projects in other US facilities; and |
| · | approximately $__________________ for continued research and development to support certain product launches. |
The remaining net proceeds will be used for working capital and other general corporate purposes.
The allocation of the net proceeds of the offering set forth above represents our estimates based upon our current plans and assumptions regarding industry and general economic conditions, our future revenues and expenditures.
The amounts and timing of our actual expenditures will depend upon numerous factors, including market conditions, cash generated by our operations, business developments and related rate of growth. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes.
Circumstances that may give rise to a change in the use of proceeds and the alternate purposes for which the proceeds may be used include:
| • | the existence of other opportunities or the need to take advantage of changes in timing of our existing activities; |
| • | the need or desire on our part to accelerate, increase or eliminate existing initiatives due to, among other things, changing market conditions and competitive developments; and/or |
| • | if strategic opportunities of which we are not currently aware present themselves (including acquisitions, joint ventures, licensing and other similar transactions). |
From time to time, we evaluate these and other factors and we anticipate continuing to make such evaluations to determine if the existing allocation of resources, including the proceeds of this offering, is being optimized. Pending such uses, we intend to invest the net proceeds of this offering in direct and guaranteed obligations of the United States, interest-bearing, investment-grade instruments or certificates of deposit.
If you purchase securities in this offering, [and assuming no value is attributed to the warrants,] your interest will be diluted immediately to the extent of the difference between the assumed public offering price of $_____ per share and the as adjusted net tangible book value per share of our common stock immediately following this offering.
Our net tangible book value as of June 30, 2013 was approximately $(609), or approximately $0.00 per share. Net tangible book value per share represents our total tangible assets less total liabilities, divided by the number of shares of common stock outstanding as of June 30, 2013.
Net tangible book value dilution per share of common stock to new investors represents the difference between the amount per share paid by purchasers in this offering and the as adjusted net tangible book value per share of common stock immediately after completion of this offering, [assuming that no value is attributed to the warrants.] After giving effect to our sale of _____ shares in this offering at an assumed public offering price of $_____ per share, and after deducting the underwriter commissions and estimated offering expenses, our as adjusted net tangible book value as of June 30, 2013 would have been $_____, or $_____ per share. This represents an immediate increase in net tangible book value of $_____ per share to existing stockholders and an immediate dilution in net tangible book value of $_____ per share to purchasers of shares in this offering, as illustrated in the following table:
| Assumed public offering price per share | | $ | | |
| Net tangible book value per share as of June 30, 2013 | | $ | | |
| Increase in net tangible book value per share attributable to new investors | | $ | | |
| Adjusted net tangible book value per share as of June 30, 2013, after giving effect to the offering | | $ | | |
| Dilution per share to new investors in the offering | | $ | | |
The above discussion and tables do not include the following:
| · | 24,940,600 shares of common stock currently reserved for future issuance under our equity incentive plans. As of September 26, 2013, there were options to purchase 36,118,641 shares of our common stock outstanding under our equity incentive plans with a weighted average exercise price of $0.12 per share; |
| · | 143,252,425 shares of common stock issuable upon exercise of outstanding warrants as of September 26, 2013, with exercise prices ranging from $0.07 per share to $0.69 per share; |
| · | 88,094,553 shares of common stock (subject to adjustment) that are issuable upon conversion of outstanding convertible promissory notes; and |
| · | __________ shares of common stock that will be issued upon exercise of warrants at an exercise price of $_____ per share sold in this offering or to the underwriters. |
PRICE RANGE OF OUR COMMON STOCK
Market Information
Our common stock is quoted on the OTCQB under the symbol “RIBT.” The following table sets forth, for the periods indicated, the high and low sales prices per share of our common stock as reported by the OTCQB. The prices below reflect inter-dealer prices, without retail mark-up, markdown or commission, and may not represent actual transactions.
| | High | | | Low | |
| 2011 | | | | | | |
| First Quarter | | $ | 0.41 | | | $ | 0.16 | |
| Second Quarter | | $ | 0.39 | | | $ | 0.16 | |
| Third Quarter | | $ | 0.19 | | | $ | 0.11 | |
| Fourth Quarter | | $ | 0.20 | | | $ | 0.10 | |
| 2012 | | | | | | | | |
| First Quarter | | $ | 0.16 | | | $ | 0.10 | |
| Second Quarter | | $ | 0.16 | | | $ | 0.04 | |
| Third Quarter | | $ | 0.09 | | | $ | 0.04 | |
| Fourth Quarter | | $ | 0.12 | | | $ | 0.04 | |
| 2013 | | | | | | | | |
| First Quarter | | $ | 0.12 | | | $ | 0.05 | |
| Second Quarter | | $ | 0.09 | | | $ | 0.06 | |
| Third Quarter through September 26, 2013, 2013 | | $ | 0.07 | | | $ | 0.06 | |
Holders
On September 26, 2013, the last sales price reported on the OTCQB for our common stock was $0.06 per share. As of September 26, 2013, there were approximately 226.7 million shares of our common stock outstanding and approximately 280 holders of record of our common stock.
Options and Warrants
There are outstanding warrants and outstanding options to purchase 143,252,425 and 36,118,641 shares of our common stock, respectively, as of September 26, 2013.
Convertible Notes
There is approximately $8.1 million of principal amount of convertible notes outstanding convertible into 88,094,553 shares of our common stock, subject to adjustment, of common stock as of September 26, 2013.
We have never declared or paid any cash dividends on our common stock. We currently anticipate that we will retain all future earnings for the expansion and operation of our business and do not anticipate paying cash dividends in the foreseeable future. Cash provided by operations in our Brazil segment is generally unavailable for distribution to our Corporate and USA segments pursuant to the terms of the limited liability company agreement for Nutra SA. Pursuant to the terms of outstanding senior convertible debentures and senior convertible notes, we may not pay any dividends while the debentures and senior convertible notes are outstanding. Otherwise, the payment of dividends on common stock, if any, in the future is within the discretion of our Board of Directors and will depend on its earnings, capital requirements and financial condition and other relevant facts.
The following table sets forth our cash and cash equivalents and our capitalization as of June 30, 2013:
| · | on a pro forma basis, based upon an assumed offering price of $_____ per share of common stock and corresponding warrant, to give effect to the sale of _______ shares of common stock and _______ warrants in this offering, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. |
Based on the assumed offering price of $_____ per share of common stock and corresponding warrant, we allocated $_____ of the aggregate consideration to each share of common stock [(assuming no value to the corresponding warrants).] The pro forma information below is only for illustrative purposes and our capitalization following the completion of this offering will be adjusted based on the actual offering price and other terms of this offering determined at pricing. You should read this table in conjunction with “Use of Proceeds” above as well as our “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and financial statements and the related notes appearing elsewhere in this prospectus.
| | June 30, 2013 | |
| | Unaudited Actual | | | Unaudited Pro Forma | |
| | (in thousands except share amounts) | |
| Liabilities: | | | | | | |
| Senior convertible revolving note, net of discount | | $ | 1,291 | | | $ | | |
| Senior convertible debentures, net of discount | | | 198 | | | | | |
| Subordinated convertible notes, net of discount | | | 5,397 | | | | | |
| Other debt | | | 14,249 | | | | | |
| Derivative warrant liabilities | | | 6,782 | | | | | |
| Total Liabilities | | | 27,917 | | | | | |
| | | | | | | | |
| Temporary Equity: | | | | | | | | |
| Redeemable noncontrolling interest in Nutra SA | | | 7,836 | | | | | |
| Redeemable common stock (2,118,644) shares outstanding | | | 178 | | | | | |
| Total temporary equity | | | 8,014 | | | | | |
| | | | | | | | |
| Equity: | | | | | | | | |
| Equity (deficit) attributable to our shareholders: | | | | | | | | |
| Preferred stock, 20,000,000 shares authorized and none issued | | | - | | | | | |
| Common stock, no par value, 1,200,000,000 shares authorized, 220,300,654 shares issued and outstanding, actual; _____ shares issued and outstanding, pro forma | | | 211,856 | | | | | |
| Accumulated deficit | | | (212,200 | ) | | | | |
| Accumulated other comprehensive loss | | | (1,954 | ) | | | | |
| Total equity (deficit) attributable to our shareholders | | | (2,298 | ) | | | | |
| Capitalization | | $ | 33,633 | | | | | |
The above discussion and table do not include the following
| · | 24,940,600 shares of common stock currently reserved for future issuance under our equity incentive plans. As of September 26, 2013, there were options to purchase 36,118,641 shares of our common stock outstanding under our equity incentive plans with a weighted average exercise price of $0.12 per share; |
| · | 143,252,425 shares of common stock issuable upon exercise of outstanding warrants as of September 26, 2013, with exercise prices ranging from $0.07 per share to $0.69 per share; |
| · | 88,094,553 shares of common stock (subject to adjustment) that are issuable upon conversion of outstanding convertible promissory notes and debentures; and |
| · | __________ shares of common stock that will be issued upon exercise of warrants at an exercise price of $_____ per share sold in this offering or to the underwriters. |
A $____ increase (decrease) in the assumed offering price of $_____ per share of common stock and corresponding warrant would increase (decrease) cash and cash equivalents and total stockholders’ equity by $_____ assuming that the number of shares and corresponding warrants offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting the estimated underwriting commissions and estimated offering expenses payable by us. The information discussed above is illustrative only and will be adjusted based on the actual offering price and other terms of this offering determined at pricing.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of financial condition and results of operations should be read together with the consolidated financial statements and accompanying notes for RiceBran Technologies appearing elsewhere in this prospectus.
Company Overview
We are a human food ingredient and animal nutrition company focused on the procurement, bio-refining and marketing of numerous products derived from rice bran. We have proprietary and patented intellectual property that allows us to convert rice bran, one of the world’s most underutilized food sources, into a number of highly nutritious human food and animal nutrition products. Our target markets are human food and animal nutrition manufacturers and retailers, as well as natural food, functional food and nutraceutical supplement manufacturers and retailers, both domestically and internationally. We have developed a bio-refining approach to processing raw rice bran into various value added constituents such as stabilized rice bran (SRB), rice bran oil (RBO), defatted rice bran (DRB) and a variety of other valuable derivative products from each of these core products.
In order to make the January 2012 final creditor payments under the amended plan of reorganization from our 2009 bankruptcy filing, we raised cash by issuing convertible debt and warrants in the first quarter of 2012. In the third quarter of 2012, we issued additional convertible debt and common stock warrants for working capital needs. It remains important for us to adequately fund the USA segment while we grow revenues and gain additional market penetration in the human ingredient and animal nutrition sectors we sell into. We continue to experience negative cash flows in the USA segment.
In our Brazil segment, we are completing a capital plant expansion project at our subsidiary, Irgovel. Operating the Irgovel plant while simultaneously installing new equipment created inefficiencies associated with downtime and periodic shutdowns related to the expansion have had a negative impact on margins in the Brazil segment. Most phases of the project are now complete, but we will need to shutdown the facility for approximately seven weeks in late December 2013 to complete the next phase of the project. We are excited about the post expansion financial outlook for the Brazil segment as we will gain numerous plant efficiencies from the new equipment and additional product volume capabilities. We and the investors in Nutra SA contributed additional capital to Nutra SA in December 2012, to finance the Irgovel plant expansion project. We are required to contribute an additional $500,000 to Nutra SA by November 15, 2013.
In 2011, we announced two strategic partner alliances. The first was a joint research and development program with DSM Innovation Center (DSM), a subsidiary of Royal DSM N.V., targeted at extracting and concentrating protein from rice bran. Additionally, we signed an exclusive, co-branded international distribution agreement with BENEO-Remy covering the sale of our SRB in over forty countries in Europe, Middle East and Africa. As of September 26, 2013, Beneo-Remy has made approximately $400,000 in purchases under the agreement. Throughout 2012, we executed on both of these alliances. In March 2013, we completed our joint research and development program with DSM and announced that this program resulted in new technology that can be used to produce first generation protein products from rice bran.
In April 2013, we and our RBT PRO LLC subsidiary entered into a series of agreements with various affiliates of Wilmar International Limited to develop rice bran and its derivatives in China for human food ingredient and animal nutrition applications, including the development of products derived from the technology created with DSM.
On September 24, 2013, we entered into an Acquisition and Stock Purchase Agreement with H&N Distribution, Inc. (H&N) and the shareholders of H&N (the H&N Shareholders) pursuant to which the H&N Shareholders will sell 100% of the issued and outstanding shares of capital stock of H&N to us (the Purchase Agreement). H&N is engaged in the business of functional food blending and manufacturing, and the distribution of food ingredients and product. Under the Purchase Agreement, we agreed to purchase 100% of the H&N capital stock for $2,000,000 plus a number of shares of our common stock based on H&N’s adjusted EBITDA (as defined in the Purchase Agreement) for the calendar year ending December 31, 2013. The number of shares of our common stock that will be issued to the H&N Shareholders ranges from 37,500,000 to 47,500,000 shares. The closing of the Purchase Agreement remains subject to certain conditions including but not limited to the completion of our due diligence on H&N and our raising at least $7,500,000 in a financing. A portion of the proceeds from this offering will be used to satisfy the cash purchase price at the closing of the Purchase Agreement. Upon closing of the transaction, H&N will become part of our USA Segment.
Further discussion and analysis of our financial condition and results of operations follows.
Basis of Presentation and Going Concern
We continue to experience losses and negative cash flows from operations on a consolidated basis which raises substantial doubt about our ability to continue as a going concern. We currently have insufficient funds to support our operations and service our debt in the near term. Although we believe that we will be able to obtain the funds necessary to continue as a going concern there can be no assurances that our efforts will prove successful. The accompanying consolidated financial statements do not include any adjustments that might be necessary if we are unable to continue as a going concern. See “Liquidity and Capital Resources” section below for a discussion of actions taken and plans to improve liquidity.
Segments
We have three reportable business segments: (i) Corporate; (ii) USA, which manufactures and distributes SRB in various granulations along with other products derived from rice bran via proprietary and patented enzyme treatment processes; and (iii) Brazil, which extracts crude RBO and DRB from rice bran, which are then further processed into a number of valuable human food and animal nutrition products. The Corporate segment includes selling, general and administrative expenses including public company expenses, litigation and other expenses not directly attributable to other segments. No Corporate allocations, including interest, are made to the other segments.
The USA segment consists of two locations in California and two locations in Louisiana all of which can produce SRB. One of the two Louisiana SRB facilities, located in Lake Charles, has been idle since May 2009. The USA segment also includes our Dillon, Montana Stage II facility which produces our Stage II products RiSolubles (a highly nutritious, carbohydrate and lipid rich fraction of SRB), RiFiber (a fiber rich derivative of SRB), RiBalance (a complete rice bran nutritional package derived from further processing SRB), Proryza P-35) a water soluble 35% protein extract from SRB) and Proryza PF-20/50 (a 20% protein and 50% insoluble dietary fiber extract of SRB). The manufacturing facilities included in our USA segment have proprietary and patented processing equipment and technology for the stabilization and further processing of rice bran into finished products. In 2012, approximately 50% of USA segment revenue was from sales of human food products and approximately 50% was from sales of animal nutrition products.
The Brazil segment consists of the consolidated operations of our majority-owned subsidiary Nutra SA, its only operating subsidiary is Industria Riograndens De Oleos Vegetais Ltda. (Irgovel), located in Pelotas, Brazil. Irgovel manufactures RBO and DRB products for both the human and animal food markets in Brazil and internationally. In refining RBO to an edible grade, several co-products are obtained. One such product is distilled fatty acids, a valuable raw material for the detergent industry. DRB is sold in bulk as animal feed and compounded with a number of other ingredients to produce complex animal nutrition products which are packaged and sold under Irgovel brands in the Brazilian market. In 2012, approximately 46% of Brazil segment product revenue was from sales of RBO products and 54% was from sales of DRB products. Irgovel is a wholly owned subsidiary of our holding company, Nutra SA. As of December 31, 2012 and June 30, 2013, we owned 51% of Nutra SA with the remaining 49% held by our minority equity partner Alothon Group and its affiliated entities. Alothon has certain rights associated with its equity ownership as more fully described in the footnotes to our financial statements.
Comparison of Results of Operations for the Years Ended December 31, 2012 and 2011
Consolidated net loss attributable to RiceBran Technologies shareholders for 2012 was $9.5 million, or $0.05 per share, compared to $10.1 million, or $0.05 per share for 2011. Loss from operations improved to $8.7 million in 2012 from $9.6 million in 2011. Results for 2012 include $4.4 million of other expense, an increase of $2.7 million compared to 2011. This increase was the result of (i) the $7.1 million of financing expense and loss on extinguishment related to the 2012 issuances of convertible debt and related warrants and (ii) a $0.5 million increase in foreign currency exchange loss, offset by (iii) a $5.1 million increase in other income from change in fair value of derivative warrant and conversion liabilities.
Revenue and Gross Profit
Revenues (in thousands):
| | | 2012 | | | % of Total Revenues | | | 2011 | | | % of Total Revenues | | | Change | | | % Change | |
| USA segment | | $ | 12,633 | | | | 33.5 | | | $ | 10,700 | | | | 29.0 | | | $ | 1,933 | | | | 18.1 | |
| Brazil segment | | | 25,090 | | | | 66.5 | | | | 26,257 | | | | 71.0 | | | | (1,167 | ) | | | (4.4 | ) |
| Total revenues | | $ | 37,723 | | | | 100.0 | | | $ | 36,957 | | | | 100.0 | | | $ | 766 | | | | 2.1 | |
Consolidated revenues for 2012, were $37.7 million compared to $37.0 million in the prior year an increase of $0.8 million, or 2.1%.
USA segment revenues improved 18.1% in 2012 compared to 2011. Animal feed product revenues increased $0.7 million, or 12.5%, on 6.0% lower volume due to the impact of price increases. Human nutrition product revenues increased $1.5 million, or 34.8% due to the impact of price increases and 9.6% higher volume. The $1.9 million increase in revenues is net of a $0.3 million decline in revenues from toll processing infant cereal products which ceased in April 2011.
Brazil segment revenues decreased 4.4%, or $1.2 million, in 2012 from 2011. Revenues decreased $4.3 million as a result of the 14.4% decline in the average exchange rate between these periods. Offsetting this $4.3 million decline was a $3.1 million net increase in revenues comprised of the following:
| · | a $2.4 million increase in bulk DRB revenues; and |
| · | a $2.0 million increase in refined oil and derivative product revenues; and |
| · | a $0.2 million increase in bagged animal feed product revenues; offset by |
| · | a $1.5 million decline in crude oil revenues. |
Brazil revenues experienced a shift from bagged animal feed products to bulk DRB and oil revenues experienced a shift from crude RBO to refined oil. Production disruptions during the capital expansion at Irgovel necessitated the shift to bulk DRB sales. The shift from crude oil sales to refined oil sales is part of a strategy to shift revenues to higher margin refined oil and derivative product sales. A US drought caused demand pressure for Brazilian soybean and corn which increased animal feedstock prices generally, and bran prices specifically, in 2012. As a result, the Brazil segment passed along higher prices for DRB and bagged animal feed products during 2012.
Gross profit (in thousands):
| | | 2012 | | | Gross Profit % | | | 2011 | | | Gross Profit % | | | Change | | | Change in Gross Profit % | |
| USA segment | | $ | 3,687 | | | | 29.2 | | | $ | 3,134 | | | | 29.3 | | | $ | 553 | | | | (0.1 | ) |
| Brazil segment | | | 2,385 | | | | 9.5 | | | | 4,437 | | | | 16.9 | | | | (2,052 | ) | | | (7.4 | ) |
| Total gross profit | | $ | 6,072 | | | | 16.1 | | | $ | 7,571 | | | | 20.5 | | | $ | (1,499 | ) | | | (4.4 | ) |
Consolidated gross profit for 2012 was $6.1 million compared to $7.6 million in 2011, a decrease of $1.5 million, or 4.4 percentage points.
The USA segment gross profit improved $0.6 million. Gross profit remained relatively unchanged at 29.2%. The USA segment gross profit was negatively impacted $1.3 million by higher raw bran prices in 2012 compared to 2011. Raw bran costs were on a continually escalating trend starting in early 2011 and continued to rise through the first quarter of 2012, before moderating slightly during the second quarter of 2012 and rising again after the third quarter of 2012. The impact of higher raw bran prices was offset by SRB selling price increases in the first and fourth quarters of 2011. The full impact of those SRB selling price increases impacted 2012.
The Brazil segment gross profit deteriorated $2.1 million, or 7.4 percentage points, from 16.9% to 9.5%. Gross profit decreased $0.4 million as a result of the 14.4% decline in the average foreign currency exchange rate between periods. The remaining margin reduction was attributable to higher raw bran costs, an unfavorable shift in sales mix to lower margin bulk animal feed products and decreased plant efficiency during the implementation of capital improvements to the animal feed plant. Raw bran costs were approximately 17% higher as of December 31, 2012 compared to December 31, 2011. Only a portion of these higher costs could be offset with higher selling prices. The plant inefficiencies associated with the capital expansion project resulted in higher production costs in 2012.
We intend to monitor bran prices and pass along increases to our customers in both the USA and Brazil segments, subject to market conditions.
Operating Expenses (in thousands):
| | 2012 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Selling, general and administrative | | $ | 4,313 | | | $ | 3,370 | | | $ | 4,560 | | | $ | 12,243 | |
| Professional fees | | | 652 | | | | - | | | | 795 | | | | 1,447 | |
| Intersegment fees | | | (347 | ) | | | - | | | | 347 | | | | - | |
| Impairment of property | | | - | | | | 1,069 | | | | - | | | | 1,069 | |
| Total operating expenses | | $ | 4,618 | | | $ | 4,439 | | | $ | 5,702 | | | $ | 14,759 | |
| | | | |
| | 2011 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Selling, general and administrative | | $ | 4,850 | | | $ | 4,921 | | | $ | 4,670 | | | $ | 14,441 | |
| Professional fees | | | 1,703 | | | | 113 | | | | 1,106 | | | | 2,922 | |
| Intersegment fees | | | (439 | ) | | | - | | | | 439 | | | | - | |
| Impairment of intangibles and property | | | 240 | | | | 1,352 | | | | - | | | | 1,592 | |
| Recoveries from former customers | | | - | | | | (1,800 | ) | | | - | | | | (1,800 | ) |
| Total operating expenses | | $ | 6,354 | | | $ | 4,586 | | | $ | 6,215 | | | $ | 17,155 | |
| | | | |
| | Favorable (Unfavorable) Change | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Selling, general and administrative | | $ | 537 | | | $ | 1,551 | | | $ | 110 | | | $ | 2,198 | |
| Professional fees | | | 1,051 | | | | 113 | | | | 311 | | | | 1,475 | |
| Intersegment fees | | | (92 | ) | | | - | | | | 92 | | | | - | |
| Impairment of property, plant and equipment | | | 240 | | | | 283 | | | | - | | | | 523 | |
| Recoveries from former customers | | | - | | | | (1,800 | ) | | | - | | | | (1,800 | ) |
| Total operating expenses | | $ | 1,736 | | | $ | 147 | | | $ | 513 | | | $ | 2,396 | |
Consolidated operating expenses were $14.8 million in 2012, compared to $17.2 million in 2011, an improvement of $2.4 million, or 14.0%.
Corporate segment selling, general and administrative expenses (SG&A) improved $0.5 million. The favorable impacts of (i) a $0.2 million reduction in payroll and related costs (ii) a $0.3 million reduction in bonus expense and (iii) a $0.6 million broad reduction in other expenses due to cost containment efforts were offset by the unfavorable impacts of (i) a $0.2 million increase in share-based compensation expense and (ii) income of $0.4 million in 2011 associated with a settlement with a former officer.
Corporate professional fees improved $1.1 million between periods. Professional fees are primarily expenses associated with consultants, accounting, auditing, tax compliance, SOX 404 compliance, and outside legal counsel. Legal expense declined $0.5 million and other professional expenses declined $0.6 million between periods. In 2011, we incurred significant audit and other consultant fees related to preparation of our 2009 and 2010 Form 10-Q and Form 10-K filings, which were delayed and filed in the first quarter of 2011.
USA segment SG&A expenses decreased $1.6 million between periods due to $0.5 million lower payroll and related costs, $0.3 million due to lower depreciation and amortization and a $0.8 million decline in other SG&A expenses. Payroll and related costs were lower as a result of reductions in workforce. The reduction in depreciation and amortization was the result of the impairments of intangibles and property in 2012 and 2011.
Brazil segment SG&A decreased $0.1 million between periods. The 14.4% reduction in the average foreign currency exchange rate reduced Brazil SG&A $0.8 million between periods. This reduction was more than offset by (i) $0.3 million of increases in payroll and related costs as a result of the annual wage increase implemented effective July 31, 2012 (average 8% increase) and increases in sales and operations management personnel in preparation for operating the plant after the capital expansion project (ii) a $0.3 million increase in the provision for doubtful accounts and (iii) a $0.1 million increase in marketing expenses.
Brazil segment professional fees decreased $0.3 million between periods. Professional fees include management and meeting attendance fees payable to the investors who own a noncontrolling interest in Nutra SA (Investors).
Intersegment fees relate to Brazil segment fees payable to the Corporate segment beginning in January 2011 under the agreements with the investors in Nutra SA. The charges are intended to compensate the Corporate segment for management time spent on Irgovel operations.
Other Income (Expense) (in thousands):
| | 2012 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Interest income | | $ | 18 | | | $ | - | | | $ | 56 | | | $ | 74 | |
| Interest expense | | | (742 | ) | | | (17 | ) | | | (1,167 | ) | | | (1,926 | ) |
| Change in fair value of derivative warrant and conversion liabilities | | | 5,420 | | | | - | | | | - | | | | 5,420 | |
| Loss on extinguishment and financing expense | | | (7,125 | ) | | | - | | | | - | | | | (7,125 | ) |
| Foreign currency exchange, net | | | - | | | | - | | | | (617 | ) | | | (617 | ) |
| Other | | | - | | | | - | | | | (210 | ) | | | (210 | ) |
| Other income (expense) | | $ | (2,429 | ) | | $ | (17 | ) | | $ | (1,938 | ) | | $ | (4,384 | ) |
| | | | | | | | | | | | | | | | |
| | | 2011 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Interest income | | $ | 53 | | | $ | - | | | $ | 73 | | | $ | 126 | |
| Interest expense | | | (619 | ) | | | (180 | ) | | | (964 | ) | | | (1,763 | ) |
| Change in fair value of derivative warrant and conversion liabilities | | | 332 | | | | - | | | | - | | | | 332 | |
| Foreign currency exchange, net | | | - | | | | - | | | | (99 | ) | | | (99 | ) |
| Other | | | (286 | ) | | | - | | | | 54 | | | | (232 | ) |
| Other income (expense) | | $ | (520 | ) | | $ | (180 | ) | | $ | (936 | ) | | $ | (1,636 | ) |
| | | | |
| | Favorable (Unfavorable) Change | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Interest income | | $ | (35 | ) | | $ | - | | | $ | (17 | ) | | $ | (52 | ) |
| Interest expense | | | (123 | ) | | | 163 | | | | (203 | ) | | | (163 | ) |
| Change in fair value of derivative warrant and conversion liabilities | | | 5,088 | | | | - | | | | - | | | | 5,088 | |
| Loss on extinguishment and financing expense | | | (7,125 | ) | | | - | | | | - | | | | (7,125 | ) |
| Foreign currency exchange, net | | | - | | | | - | | | | (518 | ) | | | (518 | ) |
| Other | | | 286 | | | | - | | | | (264 | ) | | | 22 | |
| Other income (expense) | | $ | (1,909 | ) | | $ | 163 | | | $ | (1,002 | ) | | $ | (2,748 | ) |
Consolidated other expense increased to $4.4 million in 2012, compared to $1.6 million for 2011. Consolidated other expense increased $7.1 million as a result of the financing expense and loss on extinguishment recognized in connection with the 2012 issuances of convertible debt and related warrants. Interest expense increased $0.2 million as a result of increases in average outstanding debt between periods. Foreign currency exchange gains and losses relate to certain Irgovel debt, and to a smaller extent Irgovel export-related accounts receivable, which are denominated and settled in US Dollars. Brazil segment other expense is primarily bank fees. Corporate segment other expense includes $0.2 million in 2011 for transaction costs incurred in the settlement with Herbal Sciences.
Our liability warrants and conversion liabilities are valued using the lattice model each reporting period and the resulting change in fair value is recorded in the statements of operations. The lattice model requires us to assess the probability of future issuance of equity instruments at a price lower than the current exercise price of the warrants and make certain other assumptions. The decline in the price of our common stock during 2012 and 2011 was the primary reason the derivative warrant and conversion liabilities fair value fell in each period, resulting in the recognition of other income.
Comparison of Results of Operations for the Six-Months Ended June 30, 2013 and 2012
Consolidated net loss attributable to RiceBran Technologies shareholders for the six months ended June 30, 2013, was $7.8 million, or $0.04 per share, compared to $9.0 million, or $0.04 per share, in the prior period. The $1.2 million improvement between periods in loss from operations was comprised of a $1.3 million decline in gross profit, offset by a $2.5 million improvement in operating expenses.
Revenue and Gross Profit
Revenues (in thousands):
| | Six Months Ended June 30, | |
| | 2013 | | | % of Total Revenues | | | 2012 | | | % of Total Revenues | | | Change | | | % Change | |
| USA segment | | $ | 6,034 | | | | 33.3 | | | $ | 6,564 | | | | 33.7 | | | $ | (530 | ) | | | (8.1 | ) |
| Brazil segment | | | 12,063 | | | | 66.7 | | | | 12,893 | | | | 66.3 | | | | (830 | ) | | | (6.4 | ) |
| Total revenues | | $ | 18,097 | | | | 100.0 | | | $ | 19,457 | | | | 100.0 | | | $ | (1,360 | ) | | | (7.0 | ) |
Consolidated revenues for the six months ended June 30, 2013, were $18.1 million compared to $19.5 million in the prior year period, a decrease of $1.4 million, or 7.0%.
USA segment revenues decreased $0.5 million, or 8.1%, in the first half of 2013 compared to the first half of 2012. Animal feed product revenues decreased $0.7 million on lower volume while human nutrition product revenues increased $0.2 million. The decline in animal feed revenue was attributable to the loss of one customer.
Brazil segment revenues decreased $0.8 million, or 6.4%, in the first half of 2013 compared to the first half of 2012. Revenues decreased $1.1 million as a result of the 8.4% decline in the average exchange rate between these periods. Offsetting this $1.1 million decline was a $0.3 million increase in animal feed revenues. As part of a capital expansion project, we improved our animal feed production capabilities and launched new products which were unavailable for sale in 2012.
Gross profit (in thousands):
| | Six Months Ended June 30, | |
| | 2013 | | | Gross Profit % | | | 2012 | | | Gross Profit % | | | Change | | | Change in Gross Profit % | |
| USA segment | | $ | 1,471 | | | | 24.4 | | | $ | 2,011 | | | | 30.6 | | | $ | (540 | ) | | | (6.3 | ) |
| Brazil segment | | | 773 | | | | 6.4 | | | | 1,493 | | | | 11.6 | | | | (720 | ) | | | (5.2 | ) |
| Total gross profit | | $ | 2,244 | | | | 12.4 | | | $ | 3,504 | | | | 18.0 | | | $ | (1,260 | ) | | | (5.6 | ) |
Consolidated gross profit in 2013 decreased $1.3 million, or 5.6 percentage points, to $2.2 million for the six months ended June 30, 2013, compared to $3.5 million in the prior year period.
The USA segment gross profit declined $0.5 million, to $1.5 million in the first half of 2013, from $2.0 million in the first half of 2012, due to the impact of higher raw bran prices in 2013 compared to 2012. Raw bran costs were approximately 22% higher as of June 30, 2013, compared to June 30, 2012.
The Brazil segment gross profit declined $0.7 million, or 5.2 percentage points, from 11.6% to 6.4%. Raw bran costs were approximately 19% higher as of June 30, 2013, compared to June 30, 2012. Revenue per kilo increased 18% between periods. Kilos processed were 11% lower in the first half of 2013 than in the first half of 2011. Since a significant portion of plant operating costs are fixed, lower volumes result in higher per unit production costs and negatively impacts gross profit percentage.
Operating Expenses (in thousands):
| | Six Months Ended June 30, 2013 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Selling, general and administrative | | $ | 1,883 | | | $ | 1,060 | | | $ | 2,318 | | | $ | 5,261 | |
| Professional fees | | | 463 | | | | - | | | | 267 | | | | 730 | |
| Impairment of property | | | - | | | | 300 | | | | - | | | | 300 | |
| Total operating expenses | | $ | 2,346 | | | $ | 1,360 | | | $ | 2,585 | | | $ | 6,291 | |
| | | | | | | | | | | | | | | | |
| | Six Months Ended June 30, 2012 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Selling, general and administrative | | $ | 2,394 | | | $ | 1,936 | | | $ | 2,373 | | | $ | 6,703 | |
| Professional fees | | | 400 | | | | - | | | | 587 | | | | 987 | |
| Intersegment fees | | | (112 | ) | | | - | | | | 112 | | | | - | |
| Impairment of property | | | - | | | | 1,069 | | | | - | | | | 1,069 | |
| Total operating expenses | | $ | 2,682 | | | $ | 3,005 | | | $ | 3,072 | | | $ | 8,759 | |
| | | | | | | | | | | | | | | | |
| | Favorable (Unfavorable) Change | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Selling, general and administrative | | $ | 511 | | | $ | 876 | | | $ | 55 | | | $ | 1,442 | |
| Professional fees | | | (63 | ) | | | - | | | | 320 | | | | 257 | |
| Intersegment fees | | | (112 | ) | | | - | | | | 112 | | | | - | |
| Impairment of property | | | - | | | | 769 | | | | - | | | | 769 | |
| Total operating expenses | | $ | 336 | | | $ | 1,645 | | | $ | 487 | | | $ | 2,468 | |
Consolidated operating expenses were $6.3 million for the first half of 2013, compared to $8.8 million for the first half of 2012, an improvement of $2.5 million. The reduction in USA segment impairment charges between periods contributed $0.8 million to the improvement. The impairment charge in the six months ended June 30, 2012, related to the impairment of machinery and equipment not currently in use, which was written down $1.1 million to its estimated fair value in the second quarter of 2012. In the first quarter of 2013, we reevaluated the machinery and equipment not in used and, based on current market conditions recorded an additional impairment of $0.3 million to write the machinery and equipment down to an estimated fair value of $0.4 million. The estimate of net realizable value is subject to change.
The improvement in corporate segment selling, general and administrative expenses (SG&A) of $0.5 million related to a reduction in compensation expense for stock options and payroll as a result of reduction in force and the end of stock option vesting periods.
USA segment SG&A expenses decreased $0.8 million due to a $0.4 million change in gain on sale of excess property and $0.4 million lower depreciation expense. Depreciation expense was lower in 2013 as a result of an impairment charges taken in the second quarter of 2012.
Brazil segment professional fees decreased $0.3 million because the Brazil segment no longer pays investor fees to the investors in Nutra SA. The investors in Nutra SA have agreed to waive all investor fees until further notice.
Other Income (Expense) (in thousands):
| | Six Months Ended June 30, 2013 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Interest income | | $ | - | | | $ | - | | | $ | 26 | | | $ | 26 | |
| Interest expense | | | (875 | ) | | | - | | | | (778 | ) | | | (1,653 | ) |
| Foreign currency exchange, net | | | - | | | | - | | | | (288 | ) | | | (288 | ) |
| Change in fair value of derivative warrant and conversion liabilities | | | (2,494 | ) | | | - | | | | - | | | | (2,494 | ) |
| Loss on extinguishment | | | (526 | ) | | | - | | | | - | | | | (526 | ) |
| Financing expense | | | (564 | ) | | | - | | | | - | | | | (564 | ) |
| Other | | | (17 | ) | | | - | | | | (326 | ) | | | (343 | ) |
| Other income (expense) | | $ | (4,476 | ) | | $ | - | | | $ | (1,366 | ) | | $ | (5,842 | ) |
| | | | | | | | | | | | | | | | |
| | Six Months Ended June 30, 2012 | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Interest income | | $ | 18 | | | $ | - | | | $ | 45 | | | $ | 63 | |
| Interest expense | | | (321 | ) | | | (17 | ) | | | (467 | ) | | | (805 | ) |
| Foreign currency exchange, net | | | - | | | | - | | | | (782 | ) | | | (782 | ) |
| Change in fair value of derivative warrant and conversion liabilities | | | 506 | | | | - | | | | - | | | | 506 | |
| Loss on extinguishment | | | (2,986 | ) | | | - | | | | - | | | | (2,986 | ) |
| Financing expense | | | (1,544 | ) | | | - | | | | - | | | | (1,544 | ) |
| Other | | | - | | | | - | | | | (110 | ) | | | (110 | ) |
| Other income (expense) | | $ | (4,327 | ) | | $ | (17 | ) | | $ | (1,314 | ) | | $ | (5,658 | ) |
| | | | | | | | | | | | | | | | |
| | Favorable (Unfavorable) Change | |
| | Corporate | | | USA | | | Brazil | | | Consolidated | |
| Interest income | | $ | (18 | ) | | $ | - | | | $ | (19 | ) | | $ | (37 | ) |
| Interest expense | | | (554 | ) | | | 17 | | | | (311 | ) | | | (848 | ) |
| Foreign currency exchange, net | | | - | | | | - | | | | 494 | | | | 494 | |
| Change in fair value of derivative warrant and conversion liabilities | | | (3,000 | ) | | | - | | | | - | | | | (3,000 | ) |
| Loss on extinguishment | | | 2,460 | | | | - | | | | - | | | | 2,460 | |
| Financing expense | | | 980 | | | | - | | | | - | | | | 980 | |
| Other | | | (17 | ) | | | - | | | | (216 | ) | | | (233 | ) |
| Other income (expense) | | $ | (149 | ) | | $ | 17 | | | $ | (52 | ) | | $ | (184 | ) |
Consolidated other expense was $5.8 million for the first half of 2013, compared to other expense of $5.7 million for the first half of 2012. The $0.2 million increase in other expense was comprised of the following:
| · | a $0.8 million increase in interest expense, as a result of (i) an increase in average debt outstanding in both the Corporate and Brazil segments and (ii) the increase in interest expense in the Corporate segment as a result of amortizing the debt discount on a senior debenture when the principal was paid in 2013; |
| · | the $2.5 million reduction in Corporate segment loss on extinguishment, a reduction from the $3.0 million loss in 2012 to a $0.5 million in 2013. In 2013, the losses were related to the conversion of $0.3 million of our senior debenture and the prepayment of $0.3 million on those debentures as described in the Debt note to the consolidated financial statements included herein; |
| · | the $1.0 million reduction in Corporate segment financing expense to $0.6 million in 2013 from $1.5 million in 2012. In 2013 the loss was associated with the issuance of subordinated convertible notes and related warrants and represented the excess of the fair value of the derivative conversion and warrant liabilities, and other consideration, at issuance over the proceeds from issuance, as described in the Debt footnote to the consolidated financial statements; and |
| · | a $0.2 million increase in other expense in Brazil related to penalties on tax obligations; offset by |
| · | a $0.4 million improvement in foreign exchange; and |
| · | a Corporate segment $3.0 million decrease in income from the change in the fair value of derivative warrant and conversion liabilities. Our liability warrants and conversion liabilities are valued using the lattice model each reporting period and the resulting change in fair value is recorded in the statements of operations. The lattice model requires us to assess the probability of future issuance of equity instruments at a price lower than the current exercise price of the warrants and make certain other assumptions. |
Liquidity and Capital Resources
We continue to experience losses and negative cash flows from operations on a consolidated basis which raises substantial doubt about our ability to continue as a going concern. We currently have insufficient funds to support our operations in the near term. Although we believe that we will be able to obtain the funds necessary to continue as a going concern there can be no assurances that our efforts will prove successful. The accompanying consolidated financial statements do not include any adjustments that might be necessary if we are unable to continue as a going concern.
With respect to liquidity and capital resources, we manage the Brazil segment, consisting currently of our plant in Brazil, separately from our U.S. based Corporate and USA segments. Cash on hand at our Brazil segment is generally unavailable for distribution to our Corporate and USA segments pursuant to the terms of the limited liability company agreement for Nutra SA.
Cash used in operating activities for 2012 and 2011, is presented below by segment (in thousands).
| | 2012 | |
| | Corporate and USA | | | Brazil | | | Consolidated | |
| Net loss | | $ | (7,816 | ) | | $ | (3,320 | ) | | $ | (11,136 | ) |
| Adjustments to reconcile net loss to net cash used in operations: | | | | | | | | | | | | |
| Depreciation and amortization | | | 2,071 | | | | 2,541 | | | | 4,612 | |
| Change in fair value of derivative warrant and conversion liabilities | | | (5,420 | ) | | | - | | | | (5,420 | ) |
| Financing expense | | | 2,184 | | | | - | | | | 2,184 | |
| Loss on extinguishment | | | 4,941 | | | | - | | | | 4,941 | |
| Impairment of property | | | 1,069 | | | | - | | | | 1,069 | |
| Other adjustments, net | | | 1,333 | | | | (931 | ) | | | 402 | |
| Changes in operating asset and liabilities: | | | | | | | | | | | | |
| Pre-petition liabilities | | | (1,615 | ) | | | - | | | | (1,615 | ) |
| Other changes, net | | | (413 | ) | | | 554 | | | | 141 | |
| Net cash used in operating activities | | $ | (3,666 | ) | | $ | (1,156 | ) | | $ | (4,822 | ) |
| | | | | | | | | | | | |
| | | 2011 | |
| | Corporate and USA | | | Brazil | | | Consolidated | |
| Net loss | | $ | (8,506 | ) | | $ | (2,369 | ) | | $ | (10,875 | ) |
| Adjustments to reconcile net loss to net cash used in operations: | | | | | | | | | | | | |
| Depreciation and amortization | | | 2,418 | | | | 2,562 | | | | 4,980 | |
| Change in fair value of derivative warrant liability | | | (332 | ) | | | - | | | | (332 | ) |
| Impairment of intangibles and property | | | 1,592 | | | | - | | | | 1,592 | |
| Recovery from former customer | | | (1,000 | ) | | | - | | | | (1,000 | ) |
| Other adjustments, net | | | 2,063 | | | | (266 | ) | | | 1,797 | |
| Changes in operating asset and liabilities: | | | | | | | | | | | | |
| Pre-petition liabilities | | | (4,790 | ) | | | - | | | | (4,790 | ) |
| Other changes, net | | | (206 | ) | | | (318 | ) | | | (524 | ) |
| Net cash used in operating activities | | $ | (8,761 | ) | | $ | (391 | ) | | $ | (9,152 | ) |
Corporate and USA
On a combined basis, the Corporate and USA segments used (i) $3.7 million of cash in operating activities in 2012 compared to $8.8 million in 2011. Prepetition liability payments in 2012 and 2011 were $1.6 million and $4.8 million.
We took steps in 2012 and 2011 to improve profitability and liquidity by reducing our U.S. based employee headcount at both the corporate and plant operations level. In the ongoing effort to improve profitability, significant emphasis will be placed on growing revenues. The growth of revenues is expected to include the following:
| · | growth in existing markets for stabilized rice bran (SRB), rice bran oil (RBO) and defatted rice bran (DRB); |
| · | expanding our product offerings and improving existing products; |
| · | aligning with strategic partners who can provide channels for additional sales of our products; and |
| · | implementing price increases. |
We may also monetize certain assets which could result in additional impairment of asset values. Asset monetization may include some or all of the following:
| · | sale of certain facilities; |
| · | sale of a noncontrolling interest in one or more subsidiaries; or |
| · | sale of surplus equipment. |
We continue to work to improve Corporate and SRB segment cash flows from operations. We made final distributions to unsecured creditors which reduced pre-petition liabilities by $1.6 million in the first half of 2012. Payments of pre-petition liabilities reduced cash flows from operations in the periods paid, but were in payment of obligations incurred prior to our November 2009 filing of the voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. The funds for the 2012 distributions, included in cash used in operations, were derived from receipts on notes receivable, and proceeds from issuances of the subordinated convertible notes, senior convertible debentures and related warrants in January 2012.
Cash used in investing activities in 2012 included $0.6 million of proceeds from the sale of USA segment equipment, $0.7 million from collections of USA segment notes receivable and $0.2 million of restricted cash released for the payment of pre-petition liabilities.
Cash provided by financing activities in 2012 included $3.6 million of proceeds, net of costs (primarily legal and investment banking fees), which we received from the issuances of subordinated convertible notes, the senior convertible debenture and related warrants. The net proceeds of $3.6 million were used to fund the working capital needs of the Corporate and USA segments, including payments to the unsecured creditors. In addition, during 2012, the Corporate and USA segments received $1.5 million in proceeds from senior and subordinated debt issuances and paid $2.2 million on debt.
Cash used in operating activities for the six months ended June 30, 2013 and 2012, is presented below by segment (in thousands).
| | Six Months Ended June 30, 2013 | |
| | Corporate and USA | | | Brazil | | | Consolidated | |
| Net loss | | $ | (6,711 | ) | | $ | (2,097 | ) | | $ | (8,808 | ) |
| Adjustments to reconcile net loss to net cash used in operations: | | | | | | | | | |
| Depreciation and amortization | | | 708 | | | | 1,291 | | | | 1,999 | |
| Change in fair value of derivative warrant and conversion liabilities | | | 2,494 | | | | - | | | | 2,494 | |
| Loss on extinguishment | | | 526 | | | | - | | | | 526 | |
| Financing expense | | | 564 | | | | - | | | | 564 | |
| Impairment of property | | | 300 | | | | - | | | | 300 | |
| Other adjustments, net | | | 27 | | | | (789 | ) | | | (762 | ) |
| Changes in operating assets and liabilities | | | (408 | ) | | | 1,230 | | | | 822 | |
| Net cash used in operating activities | | $ | (2,500 | ) | | $ | (365 | ) | | $ | (2,865 | ) |
| | | | | | | | | | | | |
| | Six Months Ended June 30, 2012 | |
| | Corporate and USA | | | Brazil | | | Consolidated | |
| Net loss | | $ | (8,019 | ) | | $ | (1,983 | ) | | $ | (10,002 | ) |
| Adjustments to reconcile net loss to net cash used in operations: | | | | | | | | | |
| Depreciation and amortization | | | 1,245 | | | | 1,279 | | | | 2,524 | |
| Change in fair value of derivative warrant and conversion liabilities | | | (506 | ) | | | - | | | | (506 | ) |
| Loss on extinguishment | | | 2,986 | | | | - | | | | 2,986 | |
| Impairment of property | | | 1,069 | | | | - | | | | 1,069 | |
| Financing expense | | | 1,544 | | | | - | | | | 1,544 | |
| Other adjustments, net | | | 859 | | | | (620 | ) | | | 239 | |
| Changes in operating asset and liabilities: | | | | | | | | | | | | |
| Pre-petition liabilities | | | (1,615 | ) | | | - | | | | (1,615 | ) |
| Other changes, net | | | (513 | ) | | | 111 | | | | (402 | ) |
| Net cash used in operating activities | | $ | (2,950 | ) | | $ | (1,213 | ) | | $ | (4,163 | ) |
Corporate and USA
On a combined basis, the Corporate and USA segments used 2.5 million of cash in operating activities in the first half of 2013 compared to $3.0 million in the first half of 2012.
Cash used in investing activities in the first six months of 2013 and 2012 included $0.8 million and $0.3 million of proceeds from the sale of USA segment equipment. Proceeds from the 2013 sales were used for general corporate purposes. The first six months of 2012, also included $0.6 million from collections of USA segment notes receivable and $0.2 million of restricted cash released for the payment of pre-petition liabilities.
Cash provided by financing activities in the first six months of 2013 and 2012 included $0.5 million and $2.4 million of proceeds, net of costs, which we received from the issuance of subordinated convertible debt, the senior convertible debenture and related warrants (see the Debt note to the consolidated financial statements). The net proceeds of $0.5 million and $2.4 million have been used to fund the working capital needs of the Corporate and USA segments, including distributions to the unsecured creditors in 2012.
In 2011, we entered into an agreement with a partner with the goal of developing technology to extract and concentrate protein from rice bran. In March 2013, the agreement was mutually terminated under terms whereby we each received (i) the right to separately develop, modify and improve the jointly developed technology owned by the partner and (ii) we received a nonexclusive, royalty free, perpetual license to that technology (License). We agreed to pay the partner $1.2 million as a lump sum in April 2013. In April 2013 we sold a 50% interest in our subsidiary holding the License and paid this $1.2 million obligation to the partner with the proceeds of the sale.
Under a revolving credit facility with TCA Global Credit Master Fund, LP (TCA), effective May 2013, as amended July 2013, we may borrow up to $8 million, based on the amount of eligible accounts receivable we provide to secure the repayment of the amounts borrowed. Borrowings under the agreement are evidenced by a revolving note which accrues interest at the rate of 12% per year and is due in January 2014. We owe TCA various other fees under the agreement that are expected to average approximately 7% of average borrowings per year.
USA segment accounts receivable collections are required to be directed to a TCA owned account. Collections TCA receives, in excess of amounts due for interest and fees, are treated as additional repayments and reduce amounts outstanding. Minimum cumulative repayments are $0.1 million as of October 2013, $0.2 million as of November 2013 and $0.3 million as of December 2013, or 15% of the total initially borrowed in each tranche, if greater. Until cumulative repayments equal the required minimum, TCA may withhold 20% of collections. We may request, on a weekly basis, that TCA advance us any amounts collected in excess of amounts (i) due for interest and fees and (ii) required to meet the minimum cumulative repayments.
In May 2013, we borrowed $1.4 million under the TCA revolving note. The proceeds, net of cash expenses, totaled $1.2 million and were used to (i) pay down $0.4 million of debt, (ii) fund a $0.5 million investment in Nutra SA and (3) for general corporate purposes. In July 2013, we borrowed an additional $0.6 million. The net proceeds of $0.6 million were used to make a $0.1 million investment in Nutra SA and for general corporate purposes. We expect the amount of our eligible receivables will limit our ability to borrow under this facility, such that our outstanding borrowings at any time are less than approximately $2.4 million.
Brazil
The Brazil segment used $1.2 million in operating cash in 2012, compared to using $0.4 million of operating cash in 2011, primarily due to the higher net loss in 2012.
During the first quarter of 2011, Irgovel began disbursing cash for capital improvements which are part of a project to expand production capacity and improve operational efficiency. In 2012 and 2011, these disbursements totaled $6.4 million and $6.8 million.
In December 2010, we entered into a membership interest purchase agreement with AF Bran Holdings-NL LLC and AF Bran Holdings LLC (the Investors). The Investors agreed to purchase a 35.6% interest in Nutra SA for an aggregate purchase price of $7.7 million. The Corporate segment received $4.0 million of the January 2011 proceeds. The remaining amount of $3.7 million, less $0.5 million retained by Nutra SA for administrative expenses, was invested in the Brazil segment for capital improvements and working capital needs. We received in the second quarter of 2011, an additional $3.0 million from the Investors - $1.0 million for the purchase of outstanding units in Nutra SA from the Corporate segment, which was used by that segment for working capital, and $2.0 million for the purchase of new units in Nutra SA, which was used by Irgovel to fund a capital expansion. In the third quarter of 2011, the Investors purchased additional units for $0.9 million, which was used by the Corporate segment for working capital. In the fourth quarter of 2012, the Investors purchased additional units in Nutra SA for $1.5 million, which was invested in the Brazil segment for capital improvements and working capital needs. As of December 31, 2012, the Investors owned a 49.0% interest in Nutra SA.
The Brazil segment used $0.4 million in operating cash in the first half of 2013, compared to $1.2 million of operating cash in the first half of 2012. The reduction in use of cash was primarily the result of increased payables caused by extending the payment terms with certain vendors during the second quarter of 2013.
Irgovel is currently undergoing a capital expansion project involving installation of new equipment and improvements to existing infrastructure. As of June 30, 2013, additional capital expenditures on the project are expected to total R$5.2 million ($2.3 million at the June 30, 2013 exchange rate) of which R$1.7 million ($0.7 million) was included in accounts payable as of June 30, 2013. Additional financing and/or capital will be required to complete the project. As a result of the project, we also expect production at the Irgovel facility to shutdown near the end of December 2013 for approximately seven weeks while certain new equipment is brought on line. The timing of this shutdown is subject to change based on availability of funds, the timing of the delivery of equipment from suppliers, the availability of installers and other factors. Where possible, we intend to stockpile certain inventory for sale during the period the plant is shutdown. However, this inventory may not be adequate to timely fulfill all outstanding orders during this period. In addition, during such shutdown, we will have to continue to expend capital to maintain the Irgovel facility and equipment. Facility shutdown and subsequent restart expenses may adversely affect periodic results when these events occur. Funding of capital expansion projects is being provided by proceeds received from the sale of Nutra SA membership interests to existing equity holders and bank debt.
The investors in Irgovel have the right to purchase from Nutra SA up to an additional 750,000 units for another $1.5 million. If immediately prior to such purchase Nutra SA and Irgovel have sufficient cash to complete certain projects, then the units will have no voting rights. In the second quarter of 2013, we transferred $0.7 million in cash to Nutra SA. In exchange, title was returned to us for certain equipment contributed to Nutra SA in December 2012 with an historical cost of $0.2 million. We need to raise funds to enable us to make an additional capital investment in Nutra SA, sufficient to (i) complete the projects (ii) provide the working capital Irgovel requires and (iii) maintain our 51% ownership interest in Nutra SA.
Off-Balance Sheet Arrangements
We have not entered into any transactions with unconsolidated entities whereby we have financial guarantees, subordinated retained interests, derivative instruments or other contingent arrangements that expose us to material continuing risks, contingent liabilities, or any other obligation under a variable interest in an unconsolidated entity that provides financing and liquidity support or market risk or credit support risk to us.
Critical Accounting Policies
The preparation of consolidated financial statements in accordance with accounting principles generally accepted in the United States of America (GAAP) requires us to make judgments, estimates and assumptions regarding uncertainties that affect the reported amounts presented and disclosed in the financial statements. We review these estimates and assumptions based on historical experience, changes in business conditions and other relevant factors that we believe to be reasonable under the circumstances. In any given reporting period, actual results could differ from the estimates and assumptions used in preparing our financial statements.
Critical accounting policies are those that may have a material impact on our consolidated financial statements and also require us to exercise significant judgment due to a high degree of uncertainty at the time the estimate is made. We have discussed the development and selection of our accounting policies, related accounting estimates and the disclosures set forth below with the audit committee of our board of directors. We believe our critical accounting policies include those addressing revenue recognition, allowance for doubtful accounts, inventories, long lived assets, intangible assets, goodwill and derivative liabilities.
Principles of Consolidation
The consolidated financial statements include the accounts of RiceBran Technologies and all subsidiaries in which we have a controlling interest. All significant inter-company accounts and transactions are eliminated in consolidation. Noncontrolling interests in our subsidiaries are recorded net of tax as net earnings (loss) attributable to noncontrolling interests.
Foreign Currencies
The consolidated financial statements are presented in our reporting currency, U.S. Dollars. The functional currency for Irgovel is the Brazilian Real. Accordingly, the balance sheet of Irgovel is translated into U.S. Dollars using the exchange rate in effect at the balance sheet date. Revenues and expenses are translated using the average exchange rates in effect during the period. Translation differences are recorded in accumulated other comprehensive income (loss) as foreign currency translation. Gains or losses on transactions denominated in a currency other than the subsidiaries’ functional currency which arise as a result of changes in foreign exchange rates are recorded as foreign exchange gain or loss in the statements of operations.
Cash and Cash Equivalents
We consider all highly liquid investments purchased with an original maturity of three months or less at the time of purchase to be cash equivalents. As of June 30, 2013, we maintain our cash, including restricted cash, and cash equivalents, with major banks. We maintain cash in bank accounts, which at times may exceed federally insured limits. We have not experienced any losses on such accounts.
Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable represent amounts receivable on trade accounts. The allowance for doubtful accounts is based on our assessment of the collectability of customer accounts and the aging of accounts receivable. We analyze the aging of customer accounts, customer concentrations, customer credit-worthiness, current economic trends and changes in our customer payment patterns when evaluating the adequacy of the allowance for doubtful accounts. From period to period, differences in judgments or estimates utilized may result in material differences in the amount and timing of our provision for doubtful accounts. We continue to evaluate our credit policy to ensure that the customers are worthy of terms and support our business plans.
Inventories
Inventories are stated at the lower of cost or market, with cost determined by the first-in, first-out method. In the USA segment, we employ a full absorption procedure using standard cost techniques. The standards are customarily reviewed and adjusted annually so that they are materially consistent with actual purchase and production costs. In the Brazil segment we use actual average purchase and production costs. Provisions for potentially obsolete or slow moving inventory are made based upon our analysis of inventory levels, historical obsolescence and future sales forecasts.
Long-Lived Assets, Intangible Assets and Goodwill
Long-lived assets, consisting primarily of property, intangible assets, and goodwill, comprise a significant portion of our total assets. Property is stated at cost less accumulated depreciation. Intangible assets are stated at cost less accumulated amortization.
The carrying values of property and intangible assets with finite lives are evaluated periodically in relation to the expected future cash flows of the underlying assets and monitored for other potential triggering events that might indicate impairment. Adjustments are made in the event that estimated undiscounted net cash flows estimated to be derived from the asset are less than the carrying value of the related asset. The cash flow projections are based on historical experience, management’s view of growth rates within the industry, and the anticipated future economic environment.
We are required to test goodwill for impairment at least annually (by policy, December 31) and more often if an event occurs or circumstances change that more likely than not reduce the fair value of a reporting unit below its carrying value. In assessing the recoverability of goodwill, we make estimates and assumptions about sales, operating margin, terminal growth rates and discount rates based on our budgets, business plans, economic projections, anticipated future cash flows and marketplace data. There are inherent uncertainties related to these factors and management’s judgment in applying these factors. The fair value of a reporting unit has been determined using an income approach based on the present value of the future cash flows of each reporting unit. The goodwill impairment test compares the fair value of individual reporting units to the carrying value of these reporting units. If fair value is less than carrying value then goodwill impairment may be present and a corresponding write down would be recorded. The market value of our common stock is an indicator of fair value and a consideration in determining the fair value of our reporting units.
Revenue Recognition
We recognize revenue for product sales when title and risk of loss pass to our customers, generally upon shipment for USA segment customers and Brazil segment international customers, and upon customer receipt for Brazil segment domestic customers. Each transaction is evaluated to determine if all of the following four criteria are met: (i) persuasive evidence of an arrangement exists; (ii) delivery has occurred; (iii) the selling price is fixed and determinable; and (iv) collectability is reasonably assured. If any of the above criteria cannot be satisfied then such a transaction is not recorded as revenue, or is recorded as deferred revenue and recognized only when the sales cycle is complete and payment is either received or becomes reasonably assured. Changes in judgments and estimates regarding the application of the above mentioned four criteria might result in a change in the timing or amount of revenue recognized by such transactions.
We make provisions for estimated returns discounts, and price adjustments when they are reasonably estimable. Revenues on the statements of operations are net of provisions for estimated returns, routine sales discounts, volume allowances and adjustments. Revenues on the statements of operations are also net of taxes collected from customers and remitted to governmental authorities.
Shipping and Handling Fees and Costs
Amounts billed to a customer in a sale transaction related to shipping costs are reported as revenues and the related costs incurred for shipping are included in cost of goods sold.
Research and Development
Research and development expenses include internal and external costs. Internal costs include salaries and employment related expenses. External expenses consist of costs associated with product development. All such costs are charged to expense in the period they are incurred.
Derivative Conversion Liabilities
We have certain convertible debt outstanding that contain anti-dilution clauses. Under these clauses, we may be required to lower the conversion price on the convertible debt based on future issuances of our common stock, awards of options to employees, additional issuance of warrants and/or other convertible instruments below certain conversion prices. We account for the conversion liabilities associated with these anti-dilution clauses as liability instruments, separate from the host debt. The conversion liabilities are classified as debt on our consolidated balance sheets. These conversion liabilities are valued using the lattice model each reporting period and the resultant change in fair value is recorded in the statements of operations in other income (expense).
Derivative Warrant Liabilities
We have certain warrant agreements in effect that contain anti-dilution clauses. Under these clauses, we may be required to lower the exercise price on these warrants and issue additional warrants based on future issuances of our common stock, awards of options to employees, additional issuance of warrants and/or other convertible instruments below certain exercise prices. We account for the warrants with these anti-dilution clauses as liability instruments. These warrants are valued using the lattice model each reporting period and the resultant change in fair value is recorded in the statements of operations in other income (expense).
Share-Based Compensation
Share-based compensation expense for employees is calculated at the grant date using the Black-Scholes-Merton valuation model based on awards ultimately expected to vest, reduced for estimated forfeitures, and expensed on a straight-line basis over the requisite service period of the grant. Forfeitures are estimated at the time of grant based on our historical forfeiture experience and are revised in subsequent periods if actual forfeitures differ from those estimates. The Black-Scholes-Merton option pricing model requires us to estimate key assumptions such as expected life, volatility, risk-free interest rates and dividend yield to determine the fair value of share-based awards, based on both historical information and management’s judgment regarding market factors and trends. We treat options granted to employees of foreign subsidiaries as equity options. We use alternative valuation models if grants have characteristics that cannot be reasonably estimated using the Black-Scholes-Merton model.
We account for share-based compensation awards granted to non-employees and consultants by determining the fair value of the awards granted at either the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more reliably measured. Generally we value options granted to non-employees and consultants using the Black-Scholes-Merton valuation model. If the fair value of the equity instruments issued is used, it is measured using the stock price and other measurement assumptions as of the earlier of (i) the date at which a commitment for performance by the counterparty to earn the equity instruments is reached or (ii) the date at which the counterparty's performance is complete. The expense of stock awards issued to consultants or other third parties is recognized over the term of service. In the event services are terminated early or we require no specific future performance, the entire amount is expensed. The value is re-measured each reporting period over the requisite service period. Most non-employee awards have graded vesting schedules resulting in higher compensation expense recorded early in the service period.
Income Taxes
We account for income taxes by recording a deferred tax asset or liability for the recognition of future deductible or taxable amounts and operating loss and tax credit carryforwards. Deferred tax expense or benefit is recognized as a result of timing differences between the recognition of assets and liabilities for financial reporting and tax purposes during the year.
Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards. A valuation allowance is established, when necessary, to reduce the deferred tax asset if it is “more likely than not” that the related tax benefits will not be realized.
Use of Estimates
The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Because of the uncertainty inherent in such estimates, actual results could differ from those estimates.
Overview
History and Our Corporate Structure
We incorporated under the laws of the State of California on March 18, 1998. From July 2003 until October 2012, our corporate name was “NutraCea”. Our common stock is currently trading over-the-counter under the symbol “RIBT.” In November 2009, we filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. The bankruptcy proceeding did not include any of our subsidiaries. We managed our assets and operated our business as “debtor-in-possession” under the jurisdiction of the bankruptcy court from November 2009 until we successfully exited Chapter 11 proceedings in November 2010, under an Amended Plan of Reorganization. In January 2012, we made the final payments to our unsecured creditors under the Amended Plan of Reorganization. All creditors under the amended plan were paid all amounts due to them, including interest.
We are a human food ingredient, nutritional supplement and animal nutrition company focused on value-added processing and marketing of healthy, natural and nutrient dense products derived from raw rice bran (RRB), an underutilized by-product of the rice milling industry.
Using our bio-refining business model, we apply our proprietary and patented technologies and intellectual properties to convert RRB into numerous high value products including stabilized rice bran (SRB), rice bran oil (RBO), defatted rice bran (DRB), RiBalance (a complete rice bran nutritional package derived from further processing of SRB), RiSolubles (a highly nutritious, carbohydrate and lipid rich fraction of SRB), RiFiber (a fiber rich derivative of SRB), Proryza rice bran protein products and a variety of other valuable derivatives extracted from these core products.
Our target markets are natural food, functional food, nutraceutical supplement and animal nutrition manufacturers, wholesalers and retailers, both domestically and internationally.
In February 2008, through our Delaware subsidiary Nutra S.A., we acquired 100% ownership of Irgovel, our rice bran oil processing plant in Pelotas, Brazil. During 2011, we sold approximately 49% of our ownership of Nutra SA, to AF Bran Holdings-NL LLC and AF Bran Holding LLC.
We have three reportable business segments: (i) USA segment, which manufactures and distributes SRB in various granulations along with Stage II products and derivatives; (ii) Brazil segment, which extracts crude RBO and DRB from rice bran, which are then further processed into fully refined rice bran oil for sale internationally and in Brazil, compounded animal nutrition products for horses, cows, swine, sheep and poultry and a number of valuable human food and animal nutrition products derivatives and co-products; and (iii) Corporate segment, which includes our corporate staff, general and administrative expenses including public company expenses, intellectual property, professional fees, and other expenses not directly attributable to other segments. No Corporate allocations, including interests, are made to the other segments.
The combined operations of our USA and Brazil segments encompass our bio-refining approach to processing RRB into various high quality, value-added constituents and finished products. Over the past decade, we have developed and optimized our proprietary bio-refining processes to support the production of healthy, natural, hypoallergenic, gluten free, and non-genetically modified ingredients and supplements for use in human meats, baked goods, cereals, coatings, health foods, nutritional supplements, nutraceuticals and high-end animal nutrition and health products.
USA Segment
The USA segment consists of two locations in California and one location in Louisiana all of which produce SRB. A second SRB plant located in Lake Charles, Louisiana has been idle since May 2009 and the operating equipment from that plant has been sold. The USA segment also includes our Dillon, Montana Stage II facility which produces our Stage II products RiSolubles (a highly nutritious, carbohydrate and lipid rich fraction of SRB), RiFiber (a fiber rich derivative of SRB), RiBalance (a complete rice bran nutritional package derived from further processing SRB), Proryza P-35 (a water-dispersible 35% protein extract from SRB) and Proryza PF-20/50 (a 20% protein and 50% insoluble dietary fiber extract of SRB). Stage II refers to the proprietary processes run at our Dillon, Montana facility and includes products produced at that facility using our patented processes. The manufacturing facilities included in our USA segment have proprietary and patented processing equipment and technology for the stabilization and further processing of rice bran into finished products. In 2012, approximately 50% of USA segment revenue was from sales of human food products and approximately 50% was from sales of animal nutrition products. We lease a 28,000 square foot facility in West Sacramento, California that houses a laboratory, warehouse and production facilities. Two rice bran stabilization facilities are co-located within supplier rice mills in Arbuckle and West Sacramento, California.
Brazil Segment
The Brazil segment consists of the consolidated operations of Nutra SA, whose only operating subsidiary is Irgovel, located in Pelotas, Brazil. Irgovel manufactures RBO and DRB products for both the human ingredient and animal nutrition markets in Brazil and internationally. In refining RBO to an edible grade, several co-products are obtained. One such product is distilled fatty acids, a valuable raw material for the detergent industry. Irgovel recently started production of rice lecithin, which has application in human nutrition, animal nutrition and industrial applications. DRB is compounded with a number of other ingredients to produce complex animal nutrition products which are packaged and sold under Irgovel brands in the Brazilian market, sold as a raw material for further processing into human food ingredients or sold in bulk into the animal nutrition markets in Brazil and neighboring countries. In 2012, approximately 46% of Brazil segment product revenue was from sales of RBO products and 54% was from sales of DRB products.
Our Irgovel subsidiary is comprised of several facilities on approximately 19 acres in Pelotas, Brazil. These facilities include a plant for extraction of RBO from raw rice bran, RBO refining processes, compounded animal nutrition manufacturing, consumer RBO bottling, distilled fatty acid manufacture, lecithin manufacture, and support systems including steam generation, maintenance, administrative offices and a quality assurance laboratory.
Ownership Interest in Nutra SA
In December 2010, we entered into a membership interest purchase agreement with AF Bran Holdings-NL LLC and AF Bran Holdings LLC (the Investors). The Investors agreed to purchase a 35.6% interest in Nutra SA for an aggregate purchase price of $7.7 million. The Corporate segment received $4.0 million of the January 2011 proceeds. The remaining amount of $3.7 million, less $0.5 million retained by Nutra SA for administrative expenses, was invested in the Brazil segment for capital improvements and working capital needs. We received in the second quarter of 2011, an additional $3.0 million from the Investors - $1.0 million for the purchase of outstanding units in Nutra SA from the Corporate segment, which was used by that segment for working capital, and $2.0 million for the purchase of new units in Nutra SA, which was used by Irgovel to fund a capital expansion. In the third quarter of 2011, the Investors purchased additional units for $0.9 million, which was used by the Corporate segment for working capital. In the fourth quarter of 2012, the Investors purchased additional units in Nutra SA for $1.5 million, which was invested in the Brazil segment for capital improvements and working capital needs. As of September 26, 2013, the Investors own a 49.7% interest in Nutra SA.
The Investors have certain rights, summarized below, under an investor rights agreement and the Nutra SA limited liability agreement (the LLC Agreement):
| · | Conversion Rights – The Investors may exchange units in Nutra SA for equity interests in our subsidiaries. After any exchange, the Investors would possess the same rights and obligations with respect to the securities of our subsidiaries, as they have in Nutra SA. |
| · | Global Holding Company (GHC) Roll-Up – If we form an entity, GHC, to hold our Brazil segment assets, the Investors may exchange units in Nutra SA for equity interests in GHC. The investors may exercise this right after the second anniversary of the formation of GHC or, if an event of default has occurred, after the later of January 2013 and the GHC formation date. The appraised fair value of the Investors’ interest in Nutra SA would be used to determine the amount of ownership interest the Investors would receive in GHC. |
| · | RiceBran Technologies Roll-Up – The Investors may exchange units in Nutra SA for our common stock. This right is available upon the earlier of January 2014 or, if an event of default has occurred, January 2013. We may elect to postpone our obligation to complete the roll-up to January 2015 if the roll-up would result in over 25% of our common stock being owned by the Investors. The appraised fair value of the Investors’ interest in Nutra SA and the market price of our stock would be used to determine the amount of ownership interest the Investors would receive. |
| · | Drag Along Rights – The Investors have the right to force the sale of all Nutra SA assets after the earlier of (i) January 2014, (ii) January 2013 if an event of default occurs, or (iii) the date of a qualifying event. The right terminates upon the occurrence of certain events (a $50 million Nutra SA initial public offering or a change of control). We may elect to exercise a right of first refusal to purchase the Investors’ interest instead of proceeding to a sale. |
The Investors have the right to subsequently purchase from Nutra SA up to an additional 750,000 units for another $1,500,000. If immediately prior to such purchase Nutra SA and Irgovel have sufficient cash to complete certain projects, then the units will have no voting rights.
In connection with the December 2012 capital contributions, we amended the LLC Agreement. Pursuant to this amendment, among other things, any units held by the Investors after January 1, 2014, accrue a yield at 4% if a certain milestone condition is satisfied, and at 8% if the milestone condition is not satisfied (the Yield). The milestone condition relates to Nutra SA having performed all of the following: obtaining additional back financing, completion of the capital expansion project within certain spending limitations, and operation of the plant post expansion at targeted processing levels. Commencing with the first quarter of 2014, Nutra SA must make distributions to the Investors quarterly in the amount equal to the previously accrued and unpaid Yield plus any additional distributions owed to the Investors. Until March 31, 2014, or if at any time Nutra SA is past due on its obligations to pay the Investors the Yield, all amounts due to us for management fees or for shared employees as provided under the LLC Agreement shall be tolled and remain unpaid until all past due amounts, if any, owed to the Investors have been paid in full.
Following the payment of the Yield, Nutra SA must distribute all distributable cash (as defined in the LLC Agreement) to the members on March 31 of each year as follows: (i) first, to the Investors in an amount equal to a minimum of 2 times and a maximum of 2.3 times the Investors’ capital contribution, less the aggregate amount of distributions paid to the Investors, (ii) second, to us in an amount equal to (i) two times the capital contributions made by us, less the aggregate amount of distributions paid to us; and (iii) third, to us and the Investors in proportion to our respective membership interests.
Under the LLC agreement, the business of Nutra SA is to be conducted by the manager, currently our CEO, subject to the oversight of the management committee. The management committee is comprised of three of our representatives and two Investor representatives. Upon an event of default or a qualifying event (as defined in the LLC Agreement), we will no longer control the management committee and the management committee will include three Investor representatives and two of our representatives. In addition, following an event of default or a qualifying event, a majority of the members of the management committee may replace the manager of Nutra SA.
Background
Consistent with our mission to convert feed to food, our greatest opportunities are in the functional food, nutritional supplement, nutraceutical and human food ingredient markets.
Functional Foods, Nutritional Supplements and Nutraceuticals
The US nutraceutical and functional foods market is projected to reach $75.3 billion in 2017 and grow at a compounded annual growth rate of nearly 6% between 2013 and 2017. Premium ingredient manufacturers are in high demand and we are strategically positioned to take advantage of this growing and sustainable market opportunity as discussed below in “Our Growth Strategy”.
Nutraceuticals covers a range of products including botanical extracts, dietary supplements, isolated nutrients and medical foods. Our products can be used as functional ingredients in nutraceutical products to provide certain specific nutrients or food components (including antioxidants, oryzanols, vitamin E, vitamin B, and fiber) and general nutritional supplementation. Our ingredient products are primarily sold to consumer nutrition and healthcare companies, nutritional supplement retailers, and multi-level personal product marketers. In August 2013, we entered into a multi-year agreement to sell certain of our Stage II products to a rapidly growing direct marketing company. Pursuant to that agreement, that company will purchase a minimum of $7.65 million in products during the term of the agreement which expires in December 2016. We will seek additional long-term supply agreements with similar companies in the future. As part of this strategy, we have been working with co-packaging and fulfillment companies to expand our presence in these markets.
Human Food Ingredients
Our SRB, DRB, RBO and derivatives are healthy, economical and beneficial food products that contain a unique combination of oil, protein, carbohydrates, vitamins, minerals, fibers, and antioxidants that enhance the nutritional value of popular consumer products. Foods that are ideally suited for the addition of our SRB and DRB to their products include processed meats, cereals, baked goods, breading and batters. The inclusion of DRB in breading and batters can result in a reduction in oil uptake, higher moisture retention, improved nutritional profiles, and reduced costs.
In 2008, we received USDA/FSIS approval to market rice bran as an ingredient to be used as a filler in comminuted meat products, such as meat and poultry sausages that contain binders, nugget-shaped patties, meatballs, meatloaf, and meat and poultry patties. Our products replace functional ingredients like soy protein isolate, soy protein concentrate, modified food starch, pea protein and mustard flour at a significantly reduced cost. With strong application benefits such as reduced cost per unit, increased product yield, and reduced purge, our SRB has a strong marketing position in the US meat market and an even stronger position outside the US where non-meat ingredients make up a larger percentage of meat products.
Animal Nutrition
Our SRB and DRB are marketed as feed ingredients in the US and international animal nutrition markets. We will continue to pursue high margin sales opportunities in those markets. Our SRB and DRB are used as equine feed ingredients and have been shown to provide health benefits. Show and performance horses represent the premium end of the equine market and are a key target for our animal nutrition products. In our Brazil segment, we also blend DRB with other ingredients to produce a variety of feed formulations targeted to animal species such as horses, beef cattle, dairy cows, pigs, sheep and poultry.
About Rice Bran
Rice is the staple food for over half of the world’s population and is the staple food source for several of the world’s most populous countries. Asia accounts for roughly 90% of global rice production and China is the world’s number one rice producer. Globally, Brazil and the United States rank about 9th and 10th, respectively, in production of rice at approximately 11 million metric tons annually.
When harvested from the field, individual rice kernels are stored in common receiving locations such as farm silos for future delivery to grain dryers or area rice mills. At this stage, large quantities of individual rice kernels are collectively called “paddy rice,” or “rough” rice. In this form, the rice kernel is fully enveloped by the rice hull, which serves as a protective cover, shielding the inner rice kernel from damage.
After storage and drying, if necessary, paddy rice is cleaned of foreign material (scalping, de-stoning and aspiration) just before it enters the first stage of milling, or paddy husking. In the paddy husker, the hull is removed from rough rice by differential speed rubber rollers. Loosened hulls are carried off by aspiration. After husking, a paddy separator uses a reciprocating motion to separate normal brown rice kernels (caryopsis) from unhusked kernels which are returned to the paddy husker.
In the second stage of milling, the outer brown layers of bran are removed from the inner white starch endosperm by an abrasive or frictional milling process which produces a milled, white rice kernel. After milling, white rice is typically sorted by size to remove broken pieces of rice kernels from whole kernels, as well as color sorting to remove discolored kernels. Additional stages may be required (per customer specifications) to polish the white rice to a smooth surface.
Raw rice bran collected from the milling process is composed of rice germ and several sub-layers (pericarp, testa, nucellus and aeurone) surrounding the white starchy endosperm. Commercial rice bran makes up approximately 10% of rough rice by weight. Rice germ, an especially nutrient rich material, makes up approximately 10% of commercial rice bran by weight.
As brown rice is milled into white rice, the oils present in raw rice bran come into contact with native lipase enzymes that are naturally present in the rice kernel. These lipase enzymes initiate a rapid enzymatic hydrolysis of the oil, converting oils (triglycerides) into monoglycerides, diglycerides and free fatty acids (FFA). As the FFA content builds in raw rice bran, the bran becomes unpalatable and off flavors (rancidity) begin to develop. If left unchecked, enzymatic degradation at normal room temperatures can increase the FFA levels to 5-8% within 24 hours and can continue at a rate of approximately 4-5% per day thereafter. Enzymatic degradation is the most serious form of degradation of raw rice bran. Rice bran stabilization is the process of carefully deactivating native enzymes to prevent the increase of FFA otherwise caused by lipase enzyme activity. Stabilization is critical in the preservation of the nutritional value of the bran, an important nutrient source that is largely used as animal feed or otherwise wasted.
Historically there have been a number of attempts to develop rice bran stabilization techniques, including the use of chemicals, microwave heating, or variations of existing extrusion technology. Many of these approaches have had limited success in part because they have produced rice bran with limited shelf life or with significant degradation of nutrients.
Our Technologies
Our Proprietary Rice Bran Stabilization Technology
Our stabilization process uses proprietary innovations to create a combination of temperature, pressure and other conditions necessary to thoroughly deactivate enzymes without significantly damaging the structure or nutrient content of raw rice bran. This means that higher value compounds in bran, such as oils, proteins and phytonutrients are left undamaged and are available for utilization. Our process does not use chemicals to stabilize raw rice bran.
Our stabilizers are designed to be installed adjacent to, on the premises of or in near proximity to any conventional rice mill so that freshly milled raw rice bran can be quickly delivered to our proprietary stabilizers. Process logic controllers maintain exact process conditions within the prescribed pressure/temperature regime. In case of power failure or interruption of the flow of fresh bran into the system, the electronic control system is designed to purge the equipment of materials in process and resume production only after proper operating conditions are re-established.
SRB leaving our system is then discharged onto cooling units specifically designed to control air pressure and humidity. Cooled SRB can be loaded into bulk hopper trucks for large volume customers or sent by pneumatic conveyor to a bagging unit for packaging into 50 pound or 2,000 pound sacks.
Each stabilization module can process approximately 2,000 pounds of bran per hour and has a capacity of over 7,200 tons per year. Stabilization production capacity can be doubled, tripled or further multiplied by installing additional units sharing a common conveyor and stage system, which we believe can handle the output of the world’s largest rice mills. We have also developed and tested a smaller production unit, with a maximum production capacity of 840 tons per year, for installation in countries or locations where rice mills are substantially smaller than those in the United States.
Additional patented and proprietary processes involve enzyme treatment of SRB or DRB to produce fractions enriched in one or more macronutrients, including proteins, fibers, lipids and micronutrients such as vitamins, minerals and phytosterols, among others. In these processes SRB or DRB, in an aqueous slurry, is treated with one or more enzymes, centrifugally separated and the fractions dried on drum driers.
Our Bio-Refining Process
Rice bran is hypoallergenic and a valuable source of protein with a balanced amino acid profile for human nutrition and is rich in healthy oil, vitamins, antioxidants, dietary fiber and other nutrients. The approximate composition and caloric content of our SRB is as follows:
| Fat (oil) | 18-23% |
| Protein | 12-16% |
| Total Dietary Fiber | 20-30% |
| Moisture | 4-8% |
| Ash | 6-14% |
| Calories | 3.2 kcal/gram |
Rice bran contains approximately 18-23% oil, which has a favorable fatty acid composition and excellent heat stability. Rice bran oil contains essential fatty acids and a broad range of nutraceutical compounds that have been demonstrated to have therapeutic properties.
In the bio-refining process, raw rice bran is obtained from a number of rice mills and transported to a facility within which it is first stabilized via extrusion and then solvent extracted to produce crude RBO and DRB. Crude RBO is subsequently processed in a number of steps designed to sequentially capture constituents of value and to remove and discard impurities. The final outcome of these steps is a highly refined, edible RBO that has superior flavor and functional properties. In addition, the various co-products of crude RBO processing, distilled fatty acids for example, are refined and sold as products in their own right. DRB is finely ground and packaged for use as a versatile food ingredient in many applications. DRB may also be compounded with other ingredients such as a vegetable proteins, carbohydrates, vitamin premixes and minerals to produce an array of nutritionally targeted animal feeds for various species. The DRB can also be further processed to extract and concentrate protein and dietary fiber. Our bio-refining process and related technologies are being continuously evolved as we examine the technical and commercial feasibility of producing additional products derived from both RBO and DRB.
DRB contains many of the same nutritional and functional benefits as SRB, except that the oil has been removed. This is important for several ingredient applications where SRB’s oil content could present food formulation challenges. By removing oil from SRB, nutritionists have greater options to formulate DRB into breakfast bars, calorie reduced foods, low fat baking applications and batter and breading for frying applications. Additionally, DRB is ideally suited for downstream enzymatic processing, transforming DRB into an ideal feedstock for protein concentrates and fiber concentrates.
RBO as extracted from stabilized rice bran can be utilized in a variety of edible and industrial oil applications. With proper processing, RBO becomes high quality cooking oil possessing beneficial high temperature frying characteristics. RBO has a unique fatty acid content that imparts improved oxidative stability as compared to other vegetable oils such as soy or cottonseed giving it advantages when used in food applications. The RBO extraction process utilized at our Brazilian facility uses a conventional solvent extraction process to separate oil from raw bran, resulting in crude RBO available for sale to industrial markets or other processors. Additional refining processes done in Brazil can involve degumming, neutralization, bleaching, de-waxing and deodorizing. A bio-refining process approach results in numerous marketable co-products in addition to the actual end product.
Our Growth Strategy
With the proceeds from this offering, we will be positioned to capitalize on specific market conditions that we believe will increase market acceptance of our products and lead to increased growth and profitability. These market conditions are:
| 1. | Increasing global demand for vegetable oil – Our Brazil Segment currently sells 100% of the rice bran oil it produces in its oil extraction and refining plant in Pelotas, Brazil. Following the capital expansion project at this plant, we expect raw rice bran processing capacity to increase by approximately 50% in early 2014. |
| 2. | Increasing demand for new protein sources – We have co-developed proprietary technologies with DSM Innovation Center, a subsidiary of Royal DSM N.V., that enables the extraction of protein from DRB and SRB feed stocks that we produce in both of our Brazil and US Segments. We recently launched new protein products from our US operations based on these technologies and plan to produce protein from DRB in our Brazil Segment in the future. In addition, RBT has entered into a series of agreements with Wilmar-International (Wilmar) to develop and commercialize rice bran products, including protein, for the China market. Wilmar currently operates 12 large rice mills in China and is a leading producer of raw rice bran that is available for further processing into higher value products such as protein and fiber. |
| 3. | Demand for “clean” labels on food products – The market for healthy and nutritious foods is rapidly expanding in the US, Europe and other global markets with increasing demand for healthy, natural and minimally processed ingredients that are hypoallergenic, non-genetically modified, and produced in a sustainable fashion. The regulatory need to add front-of-label warnings on food items is driving food companies to replace standard food ingredients like soy and wheat with “cleaner” ingredients such as rice bran which is non-allergenic, non-genetically modified, natural and minimally processed. Incorporation of our food ingredients by major global food companies into meats, baked goods and cereals has steadily increased in the past year helping drive sales. We expect this growth to continue as more food companies adopt rice bran as a standard food ingredient. This trend is not limited to human foods as we are finding a similar transition to “clean” ingredients among high-end animal nutrition companies. |
| 4. | The value of proprietary, evidence-based functional ingredients for nutraceuticals and functional foods – With increasing medical costs associated with doctor visits and medications, consumers are becoming more proactive in adopting and maintaining healthier lifestyles through exercise, balanced nutrition and increased consumption of functional foods and nutraceuticals. Associated with this trend is higher demand by marketers of nutraceuticals and functional foods for novel functional ingredients and particularly for proprietary and patented ingredients that provide barriers to competition in the marketplace, therefore commanding higher premiums. We currently develop and commercialize proprietary rice bran ingredients and derivatives from our Stage II facility in the USA Segment. |
Re-Launch Our Nutraceutical and Functional Foods (NFF) Business
The US nutraceutical and functional foods market is projected to reach $75.3 billion in 2017 and grow at compound annual growth rate of nearly 6% between 2013 and 2017. We have invested significant resources on research and development of rice bran extracts with health-related applications. Functionalities for a subset of these products were validated through scientific studies and human clinical studies. Our portfolio of functional ingredients includes rice bran extracts that demonstrate beneficial properties in areas of cardiovascular health, weight management, glucose balance, inflammatory response and gastrointestinal health. Premium ingredient manufacturers are in high demand and we are strategically positioned to take advantage of this growing and sustainable market opportunity. We believe our proprietary technology and patents represent valuable assets for achieving strategic leverage in this industry segment particularly in the nutraceuticals, functional foods and functional beverages sectors.
In late 2009, we ceased further development of our NFF business as we repositioned our overall business. We are now well positioned to re-launch our NFF business by adopting the following strategy:
Direct marketing to formulators and co-packers. We believe that marketing our active ingredients directly to formulators and co-packers who manufacture turnkey finished products for direct to consumer marketing companies (i.e. multi-level marketing (MLM), web, radio, retail) and to active ingredient distributors will reduce new product development cycles and drive sales of our functional ingredients. Co-packers and distributors of healthy and natural products have established credibility with multiple marketing companies who rely on these businesses to develop and manufacture new turnkey products. In our experience, working with formulators and co-packers to sell finished products to marketing and distribution companies can shorten the product development cycle and increases sales quickly.
In December 2010, we began working with H&N Distribution Inc., an Irving, Texas based company (H&N), specializing in filling and packaging healthy and natural products for NFF markets to develop turnkey products for a MLM company. This resulted in sales of approximately $68,000 of certain Stage II products in 2011. Sales in 2012 increased to approximately $310,000 and through August 2013 were approximately $630,000. In August 2013, we entered into a multi-year agreement to sell one of our Stage II products to a rapidly growing direct marketing company. Pursuant to the agreement, that company will purchase a minimum of $7.65 million in products during the term of the agreement which expires in December 2016.
In September 2013, we entered into an agreement with a Taiwanese marketing and distribution company to supply them with another of our Stage II products for exclusive distribution in Taiwan. The agreement is renewable based on annual minimum purchases.
We believe that focusing our marketing efforts on distributors, formulators and co-packaging companies will increase sales of our Stage II products in both the short- and long-term as new functional ingredients are added to our portfolio of products.
Acquisition of formulating and packaging company that serves the NFF. As part of our growth strategy, on September 24, 2013, we entered into an Acquisition and Stock Purchase Agreement with H&N and the shareholders of H&N (the H&N Shareholders) pursuant to which we will purchase 100% of the issued and outstanding shares of capital stock of H&N for $2,000,000 plus a number of shares of our common stock based on H&N’s adjusted EBITDA for the calendar year ending December 31, 2013. The number of shares of our common stock that will be issued to the H&N Shareholders ranges from 37,500,000 to 47,500,000 shares. We will use a portion of the proceeds from this offering to fund the acquisition of H&N. Upon closing of the transaction, H&N will become part of our USA Segment. H&N’s current chief executive officer and founder, Mark McKnight, will enter into a multi-year employment agreement with us and be appointed senior vice president of contract manufacturing for us and remain as chief executive officer of H&N.
By incorporating H&N’s formulating and packaging capabilities into our business model, we expect to drive sales of our Stage II products into multiple NFF channels allowing us to capture not only single ingredient sales but also sales of blended finished products consisting predominantly of our ingredients blended with other products and sold as a finished product on a business to business basis.
Increase production capacity of our Stage II products. Production of certain Stage II products at our Dillon, Montana facility is projected to grow by over 400% based on volume over current production levels by 2016. The Dillon plant can accommodate the growth in production through early 2015 but will require additional production capacity during 2015. As part of our growth strategy, we plan to use part of the proceeds from this offering to double production capacity at our Dillon plant. Expansion efforts are projected to begin in July 2014 with completion by the end of 2014.
Develop novel proprietary functional ingredients. As part of our long-term strategy to grow the NFF business, we will continue to develop functional ingredients and packaged, compounded finished products from rice bran and to validate their functionality through evidence-based scientific studies and human clinical trials.
Increase Global Distribution Network
Our growth strategy includes increasing sales of our products in overseas markets. As part of this strategy, in July 2013 we amended our exclusive distribution agreement with Beneo-Remy, a 100% owned subsidiary of Sudzucker AG, a German public company, under which Beneo-Remy will exclusively distribute our SRB product and non-exclusively distribute our other products to more than 40 countries in Europe, Middle East, Africa and other geographies. As previously described above, in September 2013, we also entered into an exclusive distribution agreement with a Taiwanese company to market our rice bran derivatives in Taiwan. We plan to add additional distributors to our network in Canada, Mexico, Central/South America, Asia and other global markets.
Complete Expansion of our Rice Bran Bio-Refinery in Brazil
Our Irgovel facility is currently undergoing a major expansion that is expected to be completed and fully operational by the first half of 2014. This expansion should increase RRB processing approximately 50% from current capacity of 6,000 metric tons per month to approximately 9,000 metric tons per month of processed RRB resulting in higher revenues and profitability.
Co-Research and Development and Investment in New Wilmar Businesses
We will continue to collaborate with Wilmar’s research and development and commercialization groups to develop and market rice bran derived products in China. Under the agreements, we obtained the right to purchase 45% of the capital stock of any entity Wilmar establishes to develop new products relating to rice bran or its derivative, as defined in the agreement, using the intellectual property licensed to Wilmar. If we decline the right to purchase 45% of the capital stock of any such new entity, we have the option to purchase 25% of the entity within two years of the entity’s formation. The exercise price for this option will equal 25% of the capital investment made in the entity, plus interest, as defined in the agreement. We believe this strategic partnership represents a significant opportunity for RBT to participate in the Asia food market and to increase the overall value of our business.
Continue to Generate Evidence-Based Functionality of Our Proprietary Ingredients
A 57-subject clinical trial conducted by Advanced Medical Research, with our funding, suggested that consumption of our RiSolubles nutritional supplements may lower blood glucose levels of type 1 and type 2 diabetes mellitus patients and may be beneficial in reducing high blood cholesterol and high blood lipid levels. If warranted, we may develop products which address the use of SRB products as medical foods for, and to potentially make health benefit claims relating to, the effects of dietary rice bran on overall health and well being and as it may relate to maintaining balanced sugar and lipid levels.
We have maintained relationships with several medical institutions and practicing physicians who may continue to conduct clinical trials and beta work for our products. Some of these previous clinical trials are reviewed in an article entitled “Effects of Stabilized Rice Bran, its Soluble and Fiber Fractions on Blood Glucose Levels and Serum Lipid Parameters in Humans with Diabetes Mellitus Types I and II” published in the Journal of Nutritional Biochemistry (March 2002, 175-187) The trials produced positive results by showing that the levels of blood lipids and glycosylated hemoglobin were reduced. Subsequently, three domestic and six international patents were issued to us on the strength of these clinical trials.
In December 2007, we formed Rice Science, LLC (Rice Science), a Delaware limited liability company, with Herbal Science Singapore Pte. Ltd. (Herbal Science) to develop nutraceutical extracts and pharmaceutical chemistries from our SRB. Herbal Science utilized sophisticated methodologies in the identification and isolation of specific biologically active compounds that have been tested for effectiveness against specific disease conditions. In March 2011, our partnership with Herbal Science ended with us acquiring the membership interest formerly owned by Herbal Science, leaving Rice Science as our wholly owned subsidiary. We are hopeful that the research performed by Herbal Science will result in biologically active SRB extracts for use in the nutraceutical and functional food industry.
In 2008, Rice Science conducted research regarding the development of extracts from SRB that would be effective in addressing inflammation and pain. A number of SRB extracts have been tested with two identified as having significant in vitro activities. A blend of these two extracts was created to produce a third extract that exhibits a high level of in vitro inhibition of Cox 1, Cox 2 and Lox 5 enzymes. This extract was used in a pharmacokinetic study to determine uptake kinetics of key bioactives into human serum. Results indicated that the bioactive compounds were rapidly assimilated. The next step would be to conduct a human clinical trial if funds were available. A number of active compounds were identified and modeled.
Late in 2007, the Cancer Biomarkers Group in the Department of Cancer Studies and Molecular Medicine, University of Leicester in Leicester, UK published a research paper evaluating the effect of our SRB in ApcMin mice (British Journal of Cancer (2007) 96, 248-254). The mice were genetically modified to serve as models for mammary, prostate and intestinal carcinogenesis. They reported that consumption of SRB (30% in the diet) reduced the numbers of intestinal adenomas in these mice by 51% compared to the same mice on a control diet.
Intellectual Property
From 2011 to March 2013, we engaged in a joint research project with DSM Innovation Center, a subsidiary of Royal DSM N.V., to develop methods for extracting and concentrating high quality vegetable protein from rice bran. Combined spending on research and development related to that project totaled $3 million. In March 2013, we announced the development of an improved fiber protein product and a separate water soluble rice bran protein product which have been commercialized under the Proryza mark. RBT will continue to support internal as well as external R&D efforts that improve on existing technologies or lead to the development of new technologies relating to rice bran processing and applications.
We hold eight U.S. patents relating to the production or use of rice bran and rice bran derivatives. In addition to the issued U.S. patents, we have been issued fifteen additional International patents covering the subject areas. We intend to apply for additional patents in the future as new products, treatments and uses are developed.
Our bio-refining and related stabilization activities are an adaptation and refinement of standard food processing technology applied to rice bran. We have chosen to treat certain of our methods and processes as a trade secret and not to pursue process or process equipment patents on the original processes. However, as we develop improvements we intend to periodically review whether we should seek patent protection for them. We believe that certain unique products, and their biological effects, resulting from our SRB may be patentable in the future. We also hold a number of U.S. registered trademarks and trade names and have applied for additional marks.
Government Regulations
USA Segment
The U.S. Food and Drug Administration (FDA), The U.S. Department of Agriculture (USDA) and The Federal Trade Commission (FTC) are the Government entities that regulate the manufacture, marketing and advertising of our products sold in the U.S.
The FDA enforces Federal Food Drug and Cosmetic Act (FFDCA) and Dietary Supplement Health and Education Act (DSHEA) regulations as they pertain to foods, food ingredients and dietary supplement production and marketing. The FDA has broad authority to enforce the provisions of federal law applicable to dietary supplements, including the power to seize adulterated or misbranded products or unapproved new drugs, to request product recall, to enjoin further manufacture or sale of a product, to issue warning letters, and to institute criminal proceedings. In the future, we may be subject to additional laws or regulations administered by the FDA or other regulatory authorities, the repeal of laws or regulations that we might consider favorable or more stringent interpretations of current laws or regulations. We are not able to predict the nature of such future laws or regulations, nor can we predict the effect of such laws or regulations on our operations. We may be required to reformulate certain of our products, recall or withdraw those products that cannot be reformulated, keep additional records, or undertake expanded scientific substantiation. Any or all of such requirements could have a material adverse effect on our business and financial condition.
The FTC regulates the advertising of dietary supplement and other health-related products. Their primary concern is that any advertising must be truthful and not misleading, and that a company must have adequate substantiation for all product claims. The FTC actively enforces requirements that companies possess adequate substantiation for product claims. FTC enforcement actions may result in consent decrees, cease and desist orders, judicial injunctions, and the payment of fines with respect to advertising claims that are found to be unsubstantiated.
The USDA retains jurisdiction over meat products and food ingredients intended for use in meats. Therefore, the use of SRB and DRB as meat enhancers is regulated by this agency. Both SRB and DRB have USDA approval for use in meat products.
Brazil Segment
The Brazil Ministry of Agriculture, Livestock, and Food Supply (MAPA) and the Brazil Ministry of Health (MS), through its National Agency of Sanitary Surveillance (ANVISA), are the primary regulators of agricultural products. MAPA is the regulatory body in Brazil that is responsible for the regulation and control of pharmaceuticals, biologicals and medicated feed additives for animal use. MAPA’s regulatory activities are conducted through the Secretary of Agricultural Defense and its Livestock Products Inspection Department. In addition, regulatory activities are conducted at a local level through the Federal Agriculture Superintendence. These activities include the inspection and licensing of both manufacturing and commercial establishments for veterinary products, as well as the submission, review and approval of pharmaceuticals, biologicals and medicated feed additives. ANVISA enforces most of the regulations regarding processed food products, including edible oil. Other ministries and/or agencies also involved in the monitoring and control of food safety include the Brazil Environment Protection Institute (IBAMA), of the Ministry of the Environment; the National Institute of Metrology, Standardization and Industrial Quality (INMETRO) of the Ministry of Development.
In addition to the foregoing, our operations will be subject to federal, foreign, state, and local government laws and regulations, including those relating to zoning, workplace safety, and accommodations for the disabled, and our relationship with our employees are subject to regulations, including minimum wage requirements, anti-discrimination laws, overtime and working conditions, and citizenship requirements.
Sales and Marketing
Both of our USA and Brazil segments use internal sales staff, outside independent sales representatives and third party distributors to market our portfolio of products domestically and internationally. In 2012, three customers accounted for approximately 40% of USA segment revenues. In our Brazil segment, three customers accounted for approximately 38% of segment revenues. We continue to diversify our customer base in an attempt to mitigate the concentration of customers. We have recently signed multi-year contracts with two customers who we expect to grow significantly. In addition, we have recently initiated new ingredient sales to large international consumer products companies that we expect to further diversify our portfolio risk.
Our Strategic Alliances
In 2011, we entered into an agreement with DSM Innovation Center, a subsidiary of Royal DSM N.V., with the goal of developing technology to extract and concentrate protein from rice bran. In March 2013, the agreement was mutually terminated under terms whereby we each received (i) the right to separately develop, modify and improve the jointly developed technology owned by the partner and (ii) a nonexclusive, royalty free, perpetual license to that technology.
RBT PRO, LLC (RBT PRO) was a wholly owned subsidiary whose only asset was the license acquired in March 2013. In April 2013, we entered into a series of agreements with various affiliates of Wilmar International Limited (collectively, Wilmar). In connection therewith, we sold a 50% membership interest in RBT PRO to Wilmar for $1.2 million. RBT PRO granted an exclusive, royalty free, perpetual sublicense of the license to Wilmar for use throughout China and to us for use worldwide, excluding China.
We also entered into a cross license agreement with Wilmar. We agreed to license to Wilmar all of our intellectual property with respect to processing of rice bran and its derivatives for use in China. Wilmar agreed to license to us (i) its intellectual property with respect to processing of rice bran, and its derivatives, based on the intellectual property licensed to Wilmar under the license for use worldwide, excluding China and (ii) its other intellectual property with respect to processing of rice bran, and its derivatives, for use worldwide, excluding certain countries in Asia.
Under the agreements, we obtained the right to purchase 45% of the capital stock of any entity Wilmar establishes to develop new products relating to rice bran or its derivative, as defined in the agreement, using the intellectual property licensed to Wilmar. If we decline the right to purchase 45% of the capital stock of any such new entity, we have the option to purchase 25% of the entity within two years of the entity’s formation. The exercise price for this option will equal 25% of the capital investment made in the entity, plus interest, as defined in the agreement.
Our Competition
There are a number of companies that have invested significant resources to develop stabilizing technologies for stabilizing and further processing rice bran and who market rice bran products with varying levels of stabilization into multiple markets around the world. We believe that we have best of breed technologies for stabilizing rice bran and, as such, have developed significant brand recognition in the animal feed and human food ingredient sectors both domestically and internationally. Together with our decades of application technology know-how and patented processing methods, we believe that we have a first-to-market advantage over the competition with respect to our SRB products
We are aware of several new producers of rice based animal nutrition and food ingredient products in the US, Europe and Asia. We believe that our major nutritional supplement competitors include producers of isolated soy protein, wheat bran and oat bran, particularly in the functional food ingredients market segment.
We compete with other companies that offer products incorporating SRB as well as companies that offer other food ingredients and nutritional supplements. We also face competition from companies providing products that use oat bran and wheat bran as nutritional supplements as well as for health and beauty aids. Many consumers may consider such products to be a replacement for the products we manufacture and distribute.
Beginning in 2008 with the purchase of Irgovel, we also began to compete in the world's edible oil market. Our competition for exports of rice bran oil resides primarily in Southeast Asia. Our branded rice bran oil “Carreteiro” competes with other bottled oils such as soy, palm, canola, peanut and others in the Brazilian market. In addition, our exported rice bran oil competes with those same oils from other grains, seeds and plants in markets around the world.
Our Employees
As of August 31, 2013, the USA and Corporate segments had 41 employees located in the US and the Brazil segment had 237 employees. Our employee count may change periodically. From year to year we experience normal variable labor fluctuation at our production facilities. We believe relations with our employees are good. None of our U.S. based employees are covered by collective bargaining agreements. All of the non-managerial employees at our Irgovel facility in Brazil are represented by a labor union and are covered by a collective bargaining agreement.
Our Properties
We maintain various facilities that are used for manufacturing, warehousing, research and development, distribution, and administrative functions. These facilities consist of both owned and leased properties. The following table summarizes the properties used to conduct our operations as of August 31, 2013:
Primary Segment | | Location | | Status | | Primary Use |
| USA | | West Sacramento, California | | Leased | | Warehousing, and administrative |
| | | | | | |
| USA | | Mermentau, Louisiana | | Owned | | Manufacturing |
| | | | | | |
| USA | | Lake Charles, Louisiana | | Building – owned Land - leased | | Manufacturing (idled since May 2009) |
| | | | | | |
| USA | | Dillon, Montana | | Owned | | Manufacturing |
| | | | | | |
| Brazil | | Pelotas, Brazil | | Owned | | Manufacturing, R&D and administrative |
| | | | | | |
| Corporate | | Scottsdale, Arizona | | Leased | | Administrative – corporate offices |
Our corporate headquarters are located at 6720 N. Scottsdale Rd. – Suite 390, Scottsdale, AZ 85253. As of December 31, 2012, we lease approximately 9,000 square feet of corporate office space in Scottsdale.
As part of the proposed acquisition of H&N, we would add an additional manufacturing, warehousing and distribution facility to the USA segment. The facility is located in Irving, Texas in leased space. The manufactured facilities are cGMP certified to 21CFR110 and 21CFR111 standards for production of human food and dietary supplement ingredients.
We believe that all facilities are in good operating condition, the machinery and equipment are well-maintained, the facilities are suitable for their intended purposes and they have capacities adequate for current operations.
Research and Development Expenditures
In 2011, we entered into a joint research and development agreement with DSM Innovation Center, a subsidiary of Royal DSM N.V., to develop methods for extracting and concentrating high quality vegetable protein from rice bran. Combined spending on research and development related to that project totaled $3 million. In March 2013, we announced the development of an improved fiber protein product and a separate soluble rice bran protein product. We will continue to support internal as well as external R&D efforts that improve on existing technologies or lead to the development of new technologies relating to rice bran processing and applications.
Legal Proceedings
Various lawsuits, claims, proceedings and investigations are pending involving us as described below in this section. When applicable, we record accruals for contingencies when it is probable that a liability will be incurred and the amount of loss can be reasonably estimated. In addition to the matters described herein, we are involved in or subject to, or may become involved in or subject to, routine litigation, claims, disputes, proceedings and investigations in the ordinary course of business, which in our opinion will not have a material adverse effect on our financial condition, cash flows or results of operations.
Irgovel Stockholders Lawsuit
On August 28, 2008, former Irgovel stockholder David Resyng filed an indemnification suit against Irgovel, Osmar Brito and the remaining former Irgovel stockholders (Sellers), requesting: (i) the freezing of the escrow account maintained in connection with the transfer of Irgovel’s corporate control to us and the presentation of all documentation related to the transaction, and (ii) damages in the amount of the difference between (a) the sum received by David Resyng in connection with the judicial settlement agreement executed in the action for the partial dissolution of the limited liability company filed by David Resyng against Irgovel and the Sellers and (b) the amount received by the Sellers in connection with the sale of Irgovel’s corporate control to us, in addition to moral damages as determined in the court’s discretion. The amount of damage claimed by Mr. Resyng is approximately $3 million.
We believe that the filing of the above lawsuit is a fundamental default of the obligations undertaken by the Sellers under the Quotas Purchase Agreement for the transfer of Irgovel’s corporate control, executed by and among the Sellers and us on January 31, 2008 (Purchase Agreement). Consequently, we believe that the responsibility for any indemnity, costs and expenses incurred or that may come to be incurred by Irgovel and/or us in connection with the above lawsuit is the sole responsibility of the Sellers.
On February 6, 2009, the Sellers filed a collection lawsuit against us seeking payment of the second installment of the purchase price under the Purchase Agreement, which the Sellers allege is approximately $1.0 million. We have withheld payment of the second installment pending resolution of the Resyng lawsuit noted above. We have not been served with any formal notices in regard to this matter so far. To date, only Irgovel has received formal legal notice. In addition, the Purchase Agreement requires that all disputes between us and the Sellers be adjudicated through arbitration. As part of the Purchase Agreement, $2.0 million was deposited into an escrow account to cover contingencies with the net remaining funds payable to the Sellers upon resolution of all contingencies. We believe any payout due to the lawsuit will be made out of the escrow account. As of September 26, 2013, the balance in the escrow account was $1.9 million and is included in restricted cash in our balance sheets. There is an escrow liability related to the lawsuit in accrued expenses on our balance sheets as of December 31, 2012 and 2011 totaling $1.4 million and $1.9 million. When the escrow account was funded, we established an accrued liability equal to the amount of the escrow for contingencies and the net balance due to the Sellers under the terms of the Purchase Agreement. As of December 31, 2012, $0.6 million of pre-acquisition contingencies have either been paid or specifically identified and accrued, leaving a balance of $1.4 million to settle any remaining contingencies. We believe that there is no additional material exposure as any amounts determined to be owed as a result of the above noted litigation and contingencies will be covered by the escrow account.
Diabco Life Sciences, LLC
On January 27, 2012, we filed a complaint in the Superior Court of California, Sacramento County (the Court), seeking damages arising out of Diabco Life Sciences, LLC’s (Diabco) breach of a 2008 Promissory Note (the “Note”) in the principal amount of $542,500. A one-day court trial took place on August 30, 2013 at which time Diabco stipulated that total damages through July 23, 2013, including interest and late fees, amounted to $866,865.57. On September 23, 2013, the Court issued its Tentative Statement of Decision indicating that judgment will be entered in our favor in the amount of $866,865.57 as of July 23, 2013, plus additional daily interest of $148.63 from July 23, 2013 through the date of entry of judgment (at which time, interest will accrue on the judgment at the legal rate). Absent objections from any party by October 8, 2013, the Tentative Statement of Decision will become the Court’s Final Statement of Decision and judgment will be entered thereon.
Executive Officers and Directors
Our directors and executive officers, and their ages and positions as of August 31, 2013, are as follows:
| Name | Age | Position |
| | |
| W. John Short (4) | 64 | Chief Executive Officer, President and Director |
| Jerry Dale Belt | 55 | Chief Financial Officer and Secretary |
| Colin Garner | 54 | Senior Vice President of Sales |
| David Goldman (1)(2)(3)(4)(5) | 69 | Director |
| Baruch Halpern (1)(2)(3) | 62 | Director |
| Henk W. Hoogenkamp (3) | 65 | Director |
| Robert C. Schweitzer (1)(2)(3)(4)(5) | 67 | Chairman of the Board of Directors |
| (1) | Member of the Audit Committee. |
| | (2) | Member of the Compensation Committee. |
| (3) | Member of the Nominating and Governance Committee. |
| (4) | Member of the Executive Committee. |
| (5) | Member of the Strategic Committee. |
W. John Short has served as our chief executive officer and director since October 2009 and our president since April 2012. From July 2009 until October 2009 he also served as our president. In 2008 and 2009, as CEO and managing member of W John Short & Associates, LLC, Mr. Short was engaged as a management consultant, advisory board member and/or director to several companies including SRI Global Imports Inc., G4 Analytics Inc. and Unifi Technologies Inc. From April 2006 through December 2007, Mr. Short was the chief executive officer of Skip’s Clothing Company. From January 2004 through December 2005, Mr. Short was engaged as an advisor by the Government of El Salvador to assist in the restructuring of that country’s apparel industry in relation to the elimination of global apparel quotas. Mr. Short has held senior positions with financial services and consumer products businesses in North America, South America, Asia and Europe including over a decade in international corporate banking with Citibank N.A. in New York, Venezuela, Ecuador and Hong Kong. The Board believes that Mr. Short's experience in the financial services and consumer products industry, including his over 35 years of management experience in this industry, his expansive network of contacts and relationships in the industry, his detailed knowledge of our business structure and our products, and his experience as our chief executive officer, are the attributes, skills, experiences and qualifications that allow Mr. Short to make a valuable contribution as one of our directors.
Jerry Dale Belt has served as our chief financial officer, chief accounting officer and executive vice president since June 2010. He has also served as our secretary since December 2011. Mr. Belt is a certified public accountant, a certified turnaround professional, and a certified insolvency and restructuring advisor with thirty years experience in finance and accounting in both public and private industry. He had been our financial advisor from November 2009 to June 2010. From September 2008 through June 14, 2010, Mr. Belt served as managing director of restructuring for Sierra Consulting Group, a provider of turnaround, receivership, and consulting services. From 2002 through 2008, Mr. Belt served as managing director for FTI Consulting, Inc., a global business advisory firm. Mr. Belt began his restructuring career in 1999 with PricewaterhouseCoopers. Mr. Belt has consulted with companies ranging from startups to large multi-national enterprises. Prior to 1999, Mr. Belt served for 15 years in numerous senior management positions in privately held enterprises. From 1978 to 1984, Mr. Belt spent 6 years in the audit group of Coopers & Lybrand, conducting attestation services for large corporations.
Colin Garner has served as our senior vice president of sales since September 2010. A seasoned sales and marketing professional, Mr. Garner brings 25 years of sales experience in the technical food ingredients markets in the U.S., Canada, Latin America, Europe, Asia and the Pacific Rim. Mr. Garner is responsible for leading our global sales initiatives for stabilized rice bran products. Over the course of his career, Mr. Garner has held several senior level positions with a number of recognized food ingredient manufacturers and distribution companies, most recently with Premium Ingredients International from 2009 to 2010, where he was director of business development/sales. Previous positions include director of global business development for Kerry Ingredients & Flavors from 2007 to 2009 and vice president, Americas at Chaucer Foods Incorporated from 2004 to 2007.
David Goldman has served as one of our directors since October 2012. Mr. Goldman, a certified public accountant, retired as a senior partner of Deloitte & Touche LLP (D&T) in 2001 after serving 35 years with that firm. During his career, Mr. Goldman specialized in serving SEC registrants, held the positions of partner-in-charge and senior technical partner of the Arizona audit practice, and served in D&T’s New York executive office, Los Angeles office and certain other offices. Since 2001, he has consulted on, and performed investigations of, various accounting and financial matters, many involving public companies. He is a past member of Council of the American Institute of CPAs and a past president of the Arizona Society of CPAs, among other executive board positions. In addition, he served as Audit Committee Chairman, Financial Expert, and member of the Board of Directors of Swift Transportation from 2003 to 2006. He currently serves on the board of ML Liquidating Trust. Mr. Goldman obtained a bachelors degree in business administration and a masters of accounting degree from the University of Arizona. The Board believes that Mr. Goldman’s extensive experience as a CPA, outside board experience and business knowledge and financial expertise are the attributes, skills, experiences and qualifications that allow Mr. Goldman to make a valuable contribution as one of our directors.
Baruch Halpern has served as one of our directors since January 2012. For more than 20 years, Mr. Halpern has been involved in equity research, advisory, capital raises, and has served as managing director of Halpern Capital, Inc., a boutique investment banking firm founded by Mr. Halpern in 2002. He has also held senior finance positions at major corporations. Since 2009, Mr. Halpern has been managing director of CrossCredit Capital, LLC, a firm focused on structured financial solutions, and since 2010 he has been managing director of Carbon Capital Advisors, LLC, a firm focused on green energy and carbon footprint amelioration. He is chairman and founder of Sustain:Green, a firm founded in 2012 offering financial products such as prepaid debit and credit cards designed to fight climate change. Prior to founding Halpern Capital in 2002, Mr. Halpern held various sell-side analyst positions. Additionally, he gained substantial buy-side experience as vice president and portfolio manager at Fred Alger & Co., an investment advisory firm. At Fred Alger & Co., Mr. Halpern served as a research group leader, managing a $1 billion portfolio with more than 600 companies in a broad range of industries. Mr. Halpern has an extensive corporate and industry background, having also held positions with Celanese Corporation and Beech-Nut, Inc. Mr. Halpern received his masters of business administration in finance from Baruch College. Mr. Halpern has been a CFA Charter holder since 1982 and holds numerous FINRA certifications. The Board believes that Mr. Halpern’s financial advisor and investment advisor experience, accounting and finance knowledge, and his detailed knowledge of our business structure and our products, are the attributes, skills, experiences and qualifications that allow Mr. Halpern to make a valuable contribution as one of our directors. Mr. Halpern was appointed as a director in connection with the financing under our January 2012 note and warrant purchase agreement.
Henk W. Hoogenkamp has served as one of our directors since April 2012. Since 2006, Mr. Hoogenkamp has been an author and an independent management consultant to multiple companies, including us from time to time. From 1990 to 2006, Mr. Hoogenkamp served as a senior director of strategic technology with Solae, a wholly owned subsidiary of DuPont. Mr. Hoogenkamp has authored eleven books on the importance of dairy protein and vegetable protein in formulated foods, beverages and meat products. He has published over 500 articles in 14 languages discussing protein ingredient solutions. Mr. Hoogenkamp is a member of several strategic and technology advisory boards to global food and ingredient companies. He previously served as the President of DMV-Campina USA, now Royal FrieslandCampina, the world's largest dairy protein operator. In December 1996, Mr. Hoogenkamp received an honorary doctoral degree from the Institute of Sports Medicine, in Bucharest, Romania, for his pioneering work on the effects of protein supplementation for elite sport performance. The Board believes that Mr. Hoogenkamp’s extensive knowledge of protein ingredient solutions, experience as a member of the strategic and technology advisory boards, network of contacts and relationships in this industry and his work experience, are the attributes, skills, experiences and qualifications that allow Mr. Hoogenkamp to make a valuable contribution as one of our directors. The investors in our January 2012 note and warrant financing had the right to designate one individual for the Board to consider appointing as a director on our Board. The investors designated Mr. Hoogenkamp, and after consideration and evaluation, the Board appointed Mr. Hoogenkamp as one of our directors.
Robert C. Schweitzer has served as a director and chairman of the board since October 2012. Mr. Schweitzer was formerly the president of Shay Investment Services Inc., a holding company consisting of a bank, an investment management company, and a broker-dealer. He served in that capacity from 2007 to 2012. From 2005 until 2007, Mr. Schweitzer was the Florida regional president of Northwest Savings Bank. Prior to 2005, he held numerous executive management positions at several banks and was also a director and head of real estate consulting for Coopers & Lybrand. He is currently chairman of the board of PetMed Express, Inc. (PETS/NASDAQ) and serves on the board of directors of Altisource Asset Management (AAMC/NYSE) and OmniComm Systems, Inc. (OMCM/OTCQB). He also has served on the boards of three privately held companies and several not-for-profit entities. Mr. Schweitzer holds a master of business administration degree from the University of North Carolina, and a bachelor of science degree from the United States Naval Academy. He served in the United States Navy in the Nuclear Submarine Force and Navy Reserve for 30 years and retired with a rank of captain. The Board believes that Mr. Schweitzer’s extensive experience in the financial services and investment industries, outside board experience with public, privately held and not-for-profit entities and extensive business knowledge, are the attributes, skills, experiences and qualifications that allow Mr. Schweitzer to make a valuable contribution as one of our directors.
Board Independence
Our securities are currently not listed on a national securities exchange or in an inter-dealer quotation system which has requirements that directors be independent. However, our Board of Directors (the “Board”) annually determines the independence of each director, based on the independence criteria set forth in the listing standards of the Marketplace Rules of NASDAQ. In making its determinations, the Board considers all relevant facts and circumstances brought to its attention as well as information provided by the directors and a review of any relevant transactions or relationships between each director or any member of his or her family, and the Company, its senior management or our independent registered public accounting firm. Based on its review, the Board determined that each of Messrs. Goldman and Schweitzer is independent under the NASDAQ criteria for independent board members.
Board Committees
Audit Committee
The Audit Committee, which has been established in accordance with Section 3(a)(58)(A) of the Exchange Act, assists the Board in its general oversight of our financial reporting, internal controls, and audit functions, and is directly responsible for the appointment, compensation and oversight of the work of our independent registered public accounting firm. The members of the Audit Committee are David Goldman, Baruch Halpern and Robert C. Schweitzer. Each of Messrs. Goldman and Schweitzer is independent under Nasdaq’s independence standards for audit committee members. The Board has determined that each of Mr. Goldman and Mr. Schweitzer is an “audit committee financial expert”, as defined by the rules of the SEC. The charter of the Audit Committee is available on our website at www.ricebrantech.com on the Investor Relations page.
Compensation Committee
The Compensation Committee establishes our executive compensation policy, determines the salary and bonuses of our executive officers and recommends to the Board stock option grants for our executive officers. The current members of the Compensation Committee are David Goldman, Baruch Halpern and Robert C. Schweitzer. Each of Messrs. Goldman and Schweitzer is independent under Nasdaq’s independence standards for compensation committee members. Our chief executive officer often makes recommendations to the Compensation Committee and the Board concerning compensation of other executive officers. The Compensation Committee seeks input on certain compensation policies from the chief executive officer. The charter of the Compensation Committee is available on our website at www.ricebrantech.com on the Investor Relations page.
Nominating and Governance Committee
The Nominating and Governance Committee is responsible for matters relating to the corporate governance of our Company and the nomination of members of the Board and committees thereof. The current members of the Nominating and Governance Committee are David Goldman, Baruch Halpern, Henk W. Hoogenkamp and Robert C. Schweitzer. Mr. Schweitzer is independent under Nasdaq’s independence standards. The charter of the Nominating and Governance Committee is available on our website at www.ricebrantech.com on the Investor Relations page.
Executive Committee
The primary function of the Executive Committee is to exercise the power and authority of the Board as may be necessary during the intervals between meetings of the Board, subject to such limitations as are provided by law or by resolution of the Board. The members of the Executive Committee are David Goldman, Robert C. Schweitzer and W. John Short. There is no charter for the Executive Committee.
Strategic Committee
On April 9, 2013, the Board established a Strategic Committee. The primary functions of the Strategic Committee are to actively engage with management on strategic planning and to review and evaluate potential strategic transactions, with the goal of improving our performance and shareholder value. The members of the Strategic Committee are David Goldman and Robert C. Schweitzer, each of whom is independent under Nasdaq’s independence standards. There is no charter for the Strategic Committee.
Code of Business Conduct and Ethics
Our board of directors has adopted a Code of Business Conduct and Ethics that applies to all of our directors, officers and employees. Any waivers of any provision of this code for our directors or officers may be granted only by the Board or a committee appointed by the Board. Any waivers of any provisions of this code for an employee or a representative may be granted only by our chief executive officer or principal accounting officer. We will provide any person, without charge, a copy of this Code. Requests for a copy of the code may be made by writing to RiceBran Technologies at 6720 N. Scottsdale Road, Suite 390, Scottsdale, Arizona 85253, Attention: Chief Financial Officer.
Executive Compensation
Compensation Philosophy
Our Compensation Committee is charged with the evaluation of the compensation of our executive officers and to assure that they are compensated effectively in a manner consistent with our compensation strategy and resources, competitive practice, and the requirements of the appropriate regulatory bodies.
Our compensation philosophy has the following basic components: (i) establish competitive base salaries to attract qualified talent, and (ii) evaluate performance and grant performance-based bonuses that may include equity and cash components. We try to establish executive compensation base salaries to allow us to remain competitive in our industry and to attract and retain executives of a high caliber. Similarly, we try to align a component of annual compensation to performance and achievement of our objectives in an effort to retain highly motivated executives who are focused on performance. We review other public reports and take into account the compensation paid to executives at similarly situated companies, both within and outside of our industry, when determining and evaluating our compensation philosophy and compensation levels. Our performance, including, but not limited to, earnings, revenue growth, cash flow, and continuous improvement initiatives, is a significant part of our evaluation and compensation levels.
Summary Compensation Table
The following table sets forth information regarding compensation earned in or with respect to our fiscal years 2012 and 2011 by:
| · | each person who served as our chief executive officer in 2012; and |
| · | our two most highly compensated executive officers in 2012, other than our chief executive officer. |
We refer to these officers collectively as our named executive officers.
| | | | | | | Option | | | All Other | | | | |
| | | | Salary | | | Awards | | | Compensation | | | Total | |
| Name and Principal Position | | Year | | ($) (1) (2) | | | ($) (1)(3) | | | ($) (4) | | | ($) | |
| W. John Short, President and Chief Executive Officer | | 2012 | | | 375,000 | | | | 63,886 | | | | 55,124 | | | | 494,010 | |
| | | 2011 | | | 375,000 | | | | - | | | | 67,822 | | | | 442,822 | |
| | | | | | | | | | | | | | | | | | |
| Jerry Dale Belt, Chief Financial Officer and Secretary | | 2012 | | | 255,000 | | | | 14,307 | | | | 6,885 | | | | 276,192 | |
| | | 2011 | | | 255,000 | | | | - | | | | 6,885 | | | | 261,885 | |
| | | | | | | | | | | | | | | | | | |
| Colin Garner, Senior Vice President of Sales | | 2012 | | | 180,000 | | | | 6,888 | | | | 21,989 | | | | 208,877 | |
| | | 2011 | | | 180,000 | | | | | | | | 34,921 | | | | 214,921 | |
| (1) | Option awards are reported at grant date fair value, if awarded in the period, and at incremental fair value, if modified in the period. The assumptions used to calculate the fair value of option awards are set forth in the notes to our consolidated financial statements included in our Annual Report on Form 10-K for 2012. |
| (2) | As further described in the Narrative Disclosure to the Summary Compensation Table below, in 2011 we granted the named executive officers option awards in lieu of payment of cash salaries representing 20% of each of the named executive officer’s salary for the second half of 2011. In 2012, we also granted the named executive officers option awards in lieu of payment of cash salaries representing 10% with respect to Mr. Short and Mr. Belt and 16.67% with respect to Mr. Garner of the named executive officer’s salary for 2012. The fair value of each option award is included in the “Salary” column of the table above. |
| (3) | Reflects the change in the fair value of options held that were repriced on October 22, 2012. |
| (4) | All other compensation consists of the following amounts for 2012 and 2011: |
| | 2012 | |
| | Mr. Short | | | Mr. Belt | | | Mr. Garner | |
| | ($) | | | ($) | | | ($) | |
| Life insurance premiums | | | 19,316 | | | | - | | | | - | |
| Commuting expense reimbursements | | | 25,683 | | | | - | | | | 8,133 | (1) |
| 401(k) safe harbor contribution | | | 10,125 | | | | 6,885 | | | | 4,500 | |
| Housing allowance and relocation | | | - | | | | - | | | | 9,356 | (1) |
| Total | | | 55,124 | | | | 6,885 | | | | 21,989 | |
| | | | | | | | | | | | |
| | 2011 | |
| | Mr. Short | | | Mr. Belt | | | Mr. Garner | |
| | ($) | | | ($) | | | ($) | |
| Life insurance premiums | | | 19,316 | | | | - | | | | - | |
| Commuting expense reimbursements | | | 34,756 | | | | - | | | | 16,127 | (1) |
| 401(k) safe harbor contribution | | | 13,750 | | | | 6,885 | | | | 4,860 | |
| Housing allowance | | | - | | | | - | | | | 13,934 | (1) |
| Total | | | 67,822 | | | | 6,885 | | | | 34,921 | |
| (1) | Includes Mr. Garner’s relocation expenses from New York to Phoenix. Under the terms of his relocation agreement, as amended, we paid for the costs of his commute between New York and Arizona and provided a housing allowance until March 2012. |
Narrative Disclosure to the Summary Compensation Table
The following is a brief description of the employment agreements we entered into with each of the named executive officers and current executive officers.
W. John Short, President and Chief Executive Officer
On July 6, 2009, we entered into an employment agreement with W. John Short. The term of the employment agreement ran through June 30, 2012, and the term extends automatically for successive one-year terms unless either we or Mr. Short notifies the other in writing at least 180 days prior to the expiration of the then-effective term of its intention not to renew the employment agreement. Mr. Short’s annual salary was $300,000 until it was increased to $350,000 on June 30, 2010. Mr. Short is entitled to a one-time cash bonus of $150,000 and reimbursement if his family relocates to Arizona. Mr. Short is reimbursed for reasonable expenses for commuting between Arizona and Oregon. Mr. Short may be eligible to earn an annual bonus each year up to 75% of his annual salary and a discretionary bonus each year up to 100% of his annual salary, with the actual amount and requirements of these bonuses to be determined by our Board or Compensation Committee. Mr. Short was also entitled to an initial bonus of $100,000 which was paid in January 2011. No bonuses were earned for 2012 or 2011.
In connection with Mr. Short becoming an employee, we granted to Mr. Short employee stock options under our 2005 Equity Incentive Plan to purchase 1,200,000, 2,400,000 and 1,400,000 shares of common stock at a price per share equal to $0.20. The stock option to purchase 1,200,000 shares of common stock vested as to 400,000 shares on August 15, 2009. Following that date, 66,666 shares subject to that stock option vested on the last business day of each calendar quarter until June 30, 2012. The stock option to purchase 2,400,000 shares vested as to 800,000 shares on August 15, 2009. Following that date, 133,333 shares vested on the last business day of each calendar quarter until June 30, 2012. The stock option to purchase 1,400,000 shares vested on July 1, 2012.
On November 6, 2009, we amended Mr. Short’s employment agreement to provide that we maintain a $5,000,000 life insurance policy on Mr. Short’s life during the term of his employment. Prior to November 5, 2011, one-half of the proceeds of the policy was payable for the benefit of Mr. Short and his wife. After November 5, 2011, the policy is for the sole benefit of Mr. Short and his wife.
On July 2, 2010, we amended Mr. Short’s employment agreement, to extend the term of the agreement through the fourth anniversary of the effective date of our plan of reorganization filed with the United States Bankruptcy Court for the District of Arizona, which was November 30, 2010 (Plan Effective Date). The amendment increased Mr. Short’s base salary on the Plan Effective Date to $375,000 from $350,000. In addition, we agreed to pay Mr. Short, within ten days of the Plan Effective Date, (i) an initial bonus of $100,000 (as previously provided for in the initial employment agreement), and (ii) a bonus of $300,000 subject, among other things, to certain restrictions imposed by the Plan of Reorganization. The first bonus of $100,000, earned in 2010, was paid in January 2011.
On July 7, 2010, we granted Mr. Short an additional stock option under our 2010 Equity Incentive Plan to purchase 5,000,000 shares of common stock at an exercise price of $0.20 per share. This stock option vested as follows: (i) 1,000,000 shares n vested on July 7, 2010 (ii) 1,000,000 shares vested on the Plan Effective Date and (iii) the remaining 3,000,000 shares will vest in equal monthly installments on the last day of each month over the 48 month period commencing the month following the Plan Effective Date.
On July 15, 2011, we amended the agreement to provide that 20% of Mr. Short’s salary for the last six months of 2011 be paid in stock options instead of cash. Mr. Short received stock options to purchase up to 715,110 shares at an exercise price equal to $0.20 per share which vested and became exercisable in installments during 2011. The option expired as to 392,494 of the underlying shares on July 15, 2012 and 204,595 of the underlying shares on July 15, 2013. The option will expire as to the remaining 118,021 of the underlying shares on July 15, 2014.
In 2012, Mr. Short received 90% of his salary under his employment agreement in cash. On April 25, 2012, Mr. Short was granted a stock option to purchase up to 343,787 shares of common stock at an exercise price equal to $0.12 per share. The option vested as to 25% of the underlying shares on April 25, 2012, and the remainder vested in installments through 2012. The fair value of the option on the date of grant equaled 10% of Mr. Short’s salary. In December 2012, the exercise price on all outstanding options held by Mr. Short was lowered from $0.20 per share to $0.08 per share.
For a description of the termination and change in control provisions of Mr. Short’s employment agreement, see “Termination and Change in Control Arrangements”.
Jerry Dale Belt, Chief Financial Officer and Secretary
On June 8, 2010, we entered into an employment agreement with Mr. Belt. Mr. Belt’s term of employment extends through June 1, 2014. Pursuant to the employment agreement, we agreed to pay Mr. Belt an annual salary of $230,000 which increased to $255,000 on January 1, 2011. Mr. Belt may be eligible to earn an annual bonus each year up to 50% of his annual salary and a discretionary bonus each year as determined by our Board or Compensation Committee. No bonuses were earned for 2012 or 2011. In connection with his employment, we granted to Mr. Belt a stock option under our 2010 Equity Incentive Plan to purchase 2,500,000 shares of common stock at a price per share equal to $0.20. This stock option vested as follows: (i) 500,000 shares vested on June 15, 2010, (ii) 500,000 shares vested on the date the Bankruptcy Court entered an order approving and confirming our plan of reorganization, which was October 27, 2010 and (iii) 31,250 shares vest each month for 48 months ending October 27, 2014.
On July 15, 2011, we amended the employment agreement with Mr. Belt to provide that 20% of his salary for the last six months of 2011 be paid in stock options instead of cash. Mr. Belt received stock options to purchase up to 486,274 shares at an exercise price equal to $0.20 per share which vested and became exercisable in installments during 2011. The option expired as to 266,896 of the underlying shares expired on July 15, 2012 and as to 139,124 of the underlying shares on July 15, 2013. The option will expire as to the remaining 80,254 of the underlying shares on July 15, 2014.
On February 14, 2012, we modified the termination and change in control provisions of Mr. Belt’s employment agreement. For a description of the termination and change in control provisions of Mr. Belt’s employment agreement, see “Termination and Change in Control Arrangements”.
In 2012, Mr. Belt received 90% of his salary under his employment agreement in cash. On April 25, 2012, we granted Mr. Belt a stock option to purchase up to 233,755 shares of common stock at an exercise price equal to $0.12 per share. The option vested as to 25% of the underlying shares on April 25, 2012, and the remainder vested in installments through 2012. The fair value of the option on the date of grant equaled 10% of Mr. Belt’s salary. In October 2012, the exercise price on all outstanding options held by Mr. Belt was lowered from $0.20 per share to $0.08 per share.
Colin Garner, Senior Vice President of Sales
Colin Garner was appointed our Senior Vice President of Sales effective September 1, 2010. In connection with his appointment, we entered into an employment agreement with Mr. Garner on September 1, 2010. The agreement terminated September 1, 2012. Under the agreement we agreed to pay Mr. Garner an annual salary of $180,000 which would have increased to $200,000 on January 1, 2012 if Mr. Garner achieved certain sales targets that were approved by our Board. These targets were not met. Mr. Garner was eligible under the agreement to earn an annual bonus each year up to 50% of his annual salary and a discretionary bonus each year as determined by our Board or the Compensation Committee. No bonuses were earned for 2012 or 2011.
Under the terms of the agreement, Mr. Garner was eligible for reimbursement of up to $15,000 of actual moving expenses and reimbursement of up to $1,000 per month in temporary housing cost for up to nine months. Subsequently the temporary housing reimbursements were extended until March 2012.
On September 1, 2010, we granted Mr. Garner a stock option under our 2010 Equity Incentive Plan, expiring September 1, 2020, to purchase 1,000,000 shares of common stock at a price per share equal to $0.20. The option vests as to 20,833 shares each month for 48 months ending August 31, 2014.
On July 15, 2011, we entered into an amendment to the employment agreement with Mr. Garner to provide that 20% of his salary for the last six months of 2011 be paid in stock options instead of cash. Mr. Garner received stock options to purchase up to 343,252 shares, at an exercise price equal to $0.20 per share, which vested and became exercisable
in installments during 2011. The option expired as to 188,397 of the underlying shares on July 15, 2012 and as to 98,205 of the underlying shares on July 15, 2013. The option expires as to the remaining 56,650 of the underlying shares on July 15, 2014.
In 2012, Mr. Garner received 83.4% of his salary under his employment agreement in cash. On April 25, 2012, we granted Mr. Garner a stock option to purchase up to 275,030 shares of common stock at an exercise price equal to $0.12 per share. The option vested as to 25% of the underlying shares on April 25, 2012, and the remainder vested in installments through 2012. The fair value of the option on the date of grant equaled 16.6% of Mr. Garner’s salary. In October 2012, the exercise price on all outstanding options held by Mr. Garner was lowered from $0.20 per share to $0.08 per share.
Equity Compensation Arrangements
2005 Equity Incentive Plan
The Board adopted the 2005 Equity Incentive Plan (2005 Plan) in May 2005 and our shareholders approved the 2005 Plan in September 2005. Under the terms of the 2005 Plan, we could grant options to purchase common stock and shares of common stock to officers, directors, employees or consultants providing services to us on such terms as are determined by the Board. A total of 10,000,000 shares of common stock were reserved for issuance under the 2005 Plan. During 2012, no grants were made under the 2005 Plan. As of December 31, 2012, options to purchase a total of 7,396,250 shares were outstanding. In 2012, the Board determined that no additional grants will be made under the 2005 Plan.
Our Board administered the 2005 Plan, determined vesting schedules on plan awards and can accelerate their schedules for award recipients. Options granted under the 2005 Plan have terms of up to 10 years.
2010 Equity Incentive Plan
The Board adopted our 2010 Equity Incentive Plan (2010 Plan) in February 2010. A total of 25,000,000 shares of common stock were initially reserved for issuance under the 2010 Plan. The amount reserved increases annually each January 1st by 5% of the outstanding shares as of the prior December 31st. Additionally, in 2011 the Board approved an 8,000,000 share increase in the number of shares of common stock reserved under the 2010 Plan. Under the terms of the 2010 Plan, we may grant options to purchase common stock and shares of common stock to officers, directors, employees or consultants providing services on such terms as are determined by the Compensation Committee. The Compensation Committee administers the 2010 Plan, determines vesting schedules on plan awards and may accelerate the vesting schedules for award recipients. The options granted under the 2010 Plan have terms of up to 10 years. As of December 31, 2012, 17,796,950 shares were available for future issuance under the 2010 Plan.
| | December 31, 2012 | |
| | | |
| Initially reserved | | | 25,000,000 | |
| Additionally reserved - annual increases | | | 19,831,186 | |
| Additionally reserved - board action | | | 8,000,000 | |
| Options granted since inception, net of forfeited, expired or cancelled | | | (22,977,927 | ) |
| Stock granted since inception | | | (12,056,309 | ) |
| Available for issuance under the 2010 Plan | | | 17,796,950 | |
Pension Benefits
None of our named executive officers are covered by a pension plan or other similar benefit plan that provides for payments or other benefits at, following, or in connection with retirement.
Nonqualified Deferred Compensation
None of our named executive officers are covered by a defined contribution or other plan that provides for the deferral of compensation on a basis that is not tax-qualified.
Outstanding Equity Awards
The following table provides information as of December 31, 2012, regarding equity awards held by each of our named executive officers.
| | | | Option Awards | |
| | | | # of Securities Underlying Unexercised Options (# Exercisable) | | | # of Securities Underlying Unexercised Options (# Un-exercisable) | | | Equity Incentive Plan Awards: # of Securities Underlying Unexercised Unearned Options (#) | | | Option Exercise | | Option | |
| W. John Short | | | | 5,000,000 | | | | - | | | | - | | | | 0.08 | | 7/5/2019 | |
| | | | | 2,000,000 | | | | - | | | | - | | | | 0.08 | | 7/7/2020 | |
| (1 | ) | | | 1,562,500 | | | | 1,437,500 | | | | - | | | | 0.08 | | 7/7/2020 | |
| (4 | ) | | | 204,595 | | | | - | | | | - | | | | 0.08 | | 7/15/2013 | |
| (4 | ) | | | 118,021 | | | | - | | | | - | | | | 0.08 | | 7/15/2014 | |
| (5 | ) | | | 343,787 | | | | | | | | | | | | 0.08 | | 4/25/2022 | |
| | | | | | | | | | | | | | | | | | | | |
| Jerry Dale Belt | | | | 1,000,000 | | | | - | | | | - | | | | 0.08 | | 6/15/2020 | |
| (2 | ) | | | 812,500 | | | | 687,500 | | | | - | | | | 0.08 | | 6/15/2020 | |
| (4 | ) | | | 139,124 | | | | - | | | | - | | | | 0.08 | | 7/15/2013 | |
| (4 | ) | | | 80,254 | | | | - | | | | - | | | | 0.08 | | 7/15/2014 | |
| (5 | ) | | | 233,775 | | | | | | | | | | | | 0.08 | | 4/25/2022 | |
| | | | | | | | | | | | | | | | | | | | |
| Colin Garner | (3 | ) | | | 583,333 | | | | 416,667 | | | | - | | | | 0.08 | | 9/1/2020 | |
| (4 | ) | | | 188,397 | | | | - | | | | - | | | | 0.08 | | 7/15/2013 | |
| (4 | ) | | | 56,650 | | | | - | | | | - | | | | 0.08 | | 7/15/2014 | |
| (5 | ) | | | 275,030 | | | | | | | | | | | | 0.08 | | 4/25/2022 | |
| (1) | Shares underlying the option vest and become exercisable monthly in equal installments over the 48 months ending November 30, 2014. |
| (2) | Shares underlying the option vest and become exercisable monthly in equal installments over the 48 months ending October 27, 2014. |
| (3) | Shares underlying the option vest and become exercisable monthly in equal installments over the 48 months ending August 31, 2014. |
| (4) | Awards granted in lieu of salary for 2011. |
| (5) | Awards granted in lieu of salary for 2012. |
Termination and Change in Control Arrangements
We have entered into employment agreements with Mr. Short and Mr. Belt that require us to provide compensation to them upon termination of their employment with us or a change in control of the Company. Regardless of the manner in which their employment terminates, they will be entitled to receive amounts earned during the term of their employment. Such amounts include:
| · | the portion of their current annual base salary and bonuses which have accrued through the date of termination; |
| · | vested stock options; and |
| · | payment for accrued but unused vacation. |
In addition, immediately before a Change of Control Transaction, all stock options granted pursuant to the 2010 Plan will vest and become fully exercisable. Under the 2010 Plan, a “Change of Control Transaction” means the occurrence of any of the following events: (i) any person becomes the beneficial owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by our then-outstanding voting securities; (ii) the consummation of the sale or disposition by the Company of all or substantially all of its assets; or (iii) the consummation of a merger or consolidation of the Company or a subsidiary with another corporation or any other entity, other than a merger or consolidation which results in our voting securities of the Company outstanding immediately prior thereto continuing to represent at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.
In addition to the consideration described above, the amount of compensation payable to each of Mr. Short and Mr. Belt following termination or a change of control is discussed below.
W. John Short
Termination for Disability. In the event we terminate Mr. Short’s employment because of his Disability, Mr. Short is entitled to a lump sum cash payment equal to all reasonable moving expenses incurred by Mr. Short to relocate his family and personal possessions to Bend, Oregon.
“Disability” is defined as Mr. Short’s substantial inability to perform his duties under this Agreement for a continuous period of 90 days or longer, or for 120 days or more in any 12-month period, due to a physical or mental disability.
Termination Without Cause, for Good Reason, Non-renewal of Employment Agreement, for Death or for Work Related Disability. In the event Mr. Short’s employment is terminated (i) by us other than for “cause”, (ii) because we elect to not renew his employment agreement at the end of its term, (iii) Mr. Short terminates his employment for “good reason”, (iv) due to Mr. Short’s death or (v) due to Mr. Short’s “work related disability”, Mr. Short shall be entitled to:
| · | a cash lump sum payment equal to the greater of (i) the base salary and annual bonuses that Mr. Short would have been paid had he remained employed for the remainder of the then current term or (ii) the base salary and annual bonuses that Mr. Short would have been paid if he remained an employee for 12 months following the date of termination (such amount, the “Short Severance Payment”); |
| · | his option to purchase a total of 5,000,000 shares of common stock, expiring July 5, 2019, immediately vests in full and remains exercisable for 2 years following the date of termination; and |
| · | a cash lump sum payment equal to all reasonable moving expenses incurred by Mr. Short to relocate his family and personal possessions to Bend, Oregon. |
“Cause” is defined as (i) a material breach of the terms of his employment agreement, which remains uncured for 30 days after written notice of the breach is delivered to Mr. Short, (ii) Mr. Short has been grossly negligent or has engaged in material willful or gross misconduct in the performance of his duties, (iii) Mr. Short has committed, as determined by our Board in good faith, or has been convicted of fraud, moral turpitude, embezzlement, theft, other criminal conduct or any felony, (iv) Mr. Short habitually misuses alcohol, drugs, or any controlled substance, or (v) Mr. Short breaches his proprietary information agreement with us.
“Good Reason” is defined as (i) any material breach by us of Mr. Short’s employment agreement; (ii) a material reduction of his duties or responsibilities, or the assignment of duties or responsibilities to Mr. Short that are not consistent or commensurate with his position as chief executive officer or (iii) any reduction of Mr. Short’s base salary.
“Work-Related Disability” shall mean that Mr. Short, due to a physical disability that arises out of or is incurred in connection with his employment, has been substantially unable to perform his duties under this Agreement for a continuous period of 90 days or longer, or for 120 days or more in any 12 month period; provided, that a “Work-Related Disability” shall not include a disability arising from, or resulting from, stress, mental, nervous, behavioral or emotional disorders, or related conditions or from alcohol, drug, or controlled substance abuse or misuse.
Termination in Connection With a Change of Control. In the event that Mr. Short resigns or is terminated within 60 days before and 90 days after a Change of Control (as defined below), Mr. Short shall be entitled to:
| · | a cash lump sum payment equal to the Short Severance Payment; |
| · | his options to purchase a total of 5,000,000 shares of common stock, expiring July 5, 2019, shall immediately vest in full and remain exercisable for 2 years following the date of termination; |
| · | a cash lump sum payment equal to all reasonable moving expenses incurred by Mr. Short to relocate his family and personal possessions to Bend, Oregon; and |
| · | a cash lump sum payment equal to the difference between (i) two times the sum of Mr. Short’s base salary and target bonus level for the year in which the termination occurs and (ii) an amount equal to the Short Severance Payment. |
“Change of Control” is defined as the occurrence of any of the following events: (i) the consummation of a merger or consolidation of the Company with any other entity which results in the voting securities of the Company outstanding immediately prior thereto failing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (ii) the sale, mortgage, lease or other transfer in one or more transactions not in the ordinary course of business of assets or earning power constituting more than fifty percent (50%) of the assets or earning power of the Company and its subsidiaries (taken as a whole) to any such person or group of persons.
Jerry Dale Belt
Termination Without Cause, for Non-renewal of Employment Agreement, for Good Reason, or Death. In the event Mr. Belt’s employment is terminated (i) by us other than for Cause, (ii) because we elect to not renew his employment agreement at the end of its term, (iii) by Mr. Belt for Good Reason, or (iv) due to Mr. Belt’s death, Mr. Belt shall be entitled to a cash lump sum payment in an amount equal to the base salary that Mr. Belt would have been paid had he remained employed for the 180 day period following the date of his termination (the “Belt Severance Payment”).
“Cause” is defined as (i) a material breach of the terms of his employment agreement, which breach remains uncured for 30 days following written notice of breach, (ii) Mr. Belt has been grossly negligent or has engaged in material willful or gross misconduct in the performance of his duties, (iii) Mr. Belt has committed, as reasonably determined by our Board, or has been convicted by a court of law of fraud, moral turpitude, embezzlement, theft, or similar criminal conduct, or any felony, (iv) Mr. Belt habitually misuses alcohol, drugs, or any controlled substance, (v) Mr. Belt breaches his proprietary information agreement, or (vi) Mr. Belt fails to meet reasonable written standards established by us for performance of his duties under his employment agreement.
“Good Reason”, is defined as (i) any material breach by us of any provision of Mr. Belt’s employment agreement; (ii) a material reduction of Mr. Belt’s duties or responsibilities, or the assignment of duties or responsibilities to Mr. Belt that are not consistent or commensurate with his position as chief financial officer or (iii) any reduction of Mr. Belt’s base salary other than as part of a general reduction of the salaries of all or substantially all of our employees.
Termination in Connection With a Change of Control. In the event that Mr. Belt resigns or is terminated within 60 days before and 90 days after a Change of Control, Mr. Belt shall be entitled to:
| · | a cash lump sum payment equal to the Belt Severance Payment; |
| · | his options to purchase a total of 2,500,000 shares of common stock, expiring June 15, 2020, shall immediately vest in full and remain exercisable for a period of 90 days following termination; and |
| · | a cash lump sum payment equal to the difference between (i) two times the sum of Mr. Belt’s base salary for the year in which the termination occurs and (ii) an amount equal to the Belt Severance Payment. |
Director Compensation
Non-employee directors receive the following cash consideration for serving as directors and as members of committees of our Board of Directors:
| | General Board Service | | | Executive Committee | | | Audit Committee | | | Nominating and Governance Committee | | | Compen- sation Committee | | | Nutra SA Management Committee Meeting | |
| | ($) | | | ($) | | | ($) | | | ($) | | | ($) | | | ($) | |
| General board service - all directors | | | 40,000 | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Service as Chairman | | | 25,000 | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Committee Assignments: | | | | | | | | | | | | | | | | | | | | | | | | |
| Committee Chair | | | - | | | | 15,000 | | | | 10,000 | | | | 7,000 | | | | 7,000 | | | | - | |
| Members | | | - | | | | 2,000 | | | | 4,000 | | | | 2,000 | | | | 2,000 | | | | 2,000 | |
| Meeting Attendance Fees: | | | | | | | | | | | | | | | | | | | | | | | | |
| Full Board: | | | | | | | | | | | | | | | | | | | | | | | | |
| In-person face-to-face | | | 2,000 | | | | - | | | | - | | | | - | | | | - | | | | - | |
| Telephonic | | | 1,000 | | | | - | | | | - | | | | - | | | | - | | | | - | |
For 2012, the non-employee directors, except those who began service in the fourth quarter of 2012 (Messrs. Goldman and Schweitzer), agreed to accept stock options in lieu of cash for one half of their fees for general board service, service as chairman and committee assignments. The number of shares subject to the stock options issued in lieu of cash was determined by dividing the amount of fees owed by the fair value of an option on the date of issuance.
In addition to the fees reflected in the table above, non-employee directors receive a fee for attendance of management committee meetings of our Nutra SA subsidiary. The fee is $6,000 per meeting attended in Brazil and $2,000 per meeting attended in the United States.
If a director chairs the Board and the Executive Committee, the $15,000 Executive Committee chair fee is not paid.
We reimburse all directors for travel and other necessary business expenses incurred in the performance of director services and extend coverage to them under our directors’ and officers’ indemnity insurance policies. Under the 2010 Equity Incentive Plan, each non-employee director automatically receives an option to purchase 250,000 shares of common stock on January 1 of each year. If a director becomes a member of the Board after January 1 of a year, the director will receive a stock option to purchase a pro rata portion of the 250,000 shares based upon the months remaining in the year after the director was elected. On April 18, 2013, the Board increased the number of shares of common stock that each non-employee director automatically receives annually under the 2010 Equity Incentive Plan from 250,000 to 1,000,000 shares.
In connection with the increase in the automatic director grant, on April 18, 2013, the Board granted each of the non-employee directors a stock option to purchase up to 750,000 shares of common stock. Each option has an exercise price of 0.08 per share, vests in nine equal monthly installments ending December 31, 2013, and expires on April 18, 2023.
On April 18, 2013, the Board granted each of the directors then serving on the Strategic Committee a stock option to purchase up to 250,000 shares of common stock. Each option has an exercise price of 0.08 per share, vests in twelve equal monthly installments ending March 31, 2014 and expires on April 18, 2018. The members of the Strategic Committee receive no additional compensation for serving on the committee.
Director Compensation Table
The following director compensation table sets forth summary information concerning the compensation paid to our non-employee directors in 2012 who served on the Board during the year:
| | Fees Earned or Paid in Cash | | | Option Awards | | | All Other Compen- sation | | | Total | |
| Name | | ($) (1) | | | ($) (2) | | | ($) | | | ($) | |
| David Goldman | | | 16,917 | | | | 2,519 | | | | - | | | | 19,436 | |
| Baruch Halpern | | | 33,000 | | | | 40,764 | | | | - | | | | 73,764 | |
| Henk W. Hoogenkamp | | | 25,750 | | | | 38,501 | | | | 157,461 | (4) | | | 221,712 | |
| Richard H. Koppes (3) | | | 37,500 | | | | 51,410 | | | | - | | | | 88,910 | |
| James C. Lintzenich (3) | | | 37,208 | | | | 49,527 | | | | 79,020 | (5) | | | 165,755 | |
| Edward L. McMillan (3) | | | 42,500 | | | | 56,771 | | | | 78,877 | (5) | | | 178,148 | |
| John J. Quinn (3) | | | 37,250 | | | | 49,074 | | | | - | | | | 86,324 | |
| Steven W. Saunders (3) | | | - | | | | 24,625 | | | | 97,158 | (5) | | | 121,783 | |
| Robert C. Schweitzer | | | 19,583 | | | | 2,519 | | | | - | | | | 22,102 | |
| (1) | Amounts shown in this column reflect the annual aggregate dollar amount of all fees earned or paid in cash for services as a director, including annual retainer fees, committee and/or chairmanship fees, and meeting fees. In addition, the amount shown for Mr. Lintzenich includes $7,000 for attendance at management committee meetings of our Nutra SA subsidiary and the related retainer. |
| (2) | The amount shown is the grant date fair value of each award, and the assumptions used to calculate the fair value are set forth in the notes to our consolidated financial statements included in our Annual Report on Form 10-K for 2012. As of December 31, 2012, the directors named in the table held outstanding option awards to purchase the following number of shares of our common stock: David Goldman, 62,500 shares; Baruch Halpern, 399,105 shares; Henk W. Hoogenkamp, 308,884 shares; Richard H. Koppes, 635,761 shares; James C. Lintzenich, no shares; Edward L. McMillan, no shares; John J. Quinn, 1,151,131 shares; Steven W. Saunders, no shares; and Robert C. Schweitzer, 62,500 shares. |
| (3) | Messrs. Koppes, Lintzenich, McMillan, Quinn and Saunders resigned from the Board on June 18, 2013, November 9, 2012, November 7, 2012, December 2, 2012 and January 18, 2012, respectively. |
| (4) | The amount shown represents fees earned by Mr. Hoogenkamp under a consultant agreement. It includes the fair value of 1,000,000 shares of stock issued under the agreement as well as cash fees. |
| (5) | The amounts shown represent the fair value of 1,067,842, 1,126,818 and 809,648 shares of our common stock granted to Messrs. Lintzenich, McMillan, and Saunders, respectively, in exchange for the cancellation of options for the purchase of 1,611,235, 1,676,074 and 1,456,594 shares of our common stock, respectively. |
RELATED PARTY TRANSACTIONS
Review, Approval or Ratification of Transactions with Related Parties
As provided in our Audit Committee charter, our Audit Committee reviews and approves, unless otherwise approved by our Compensation Committee, any transaction or series of similar transactions to which we were or are to be a party in which the amount involved exceeds $120,000 and in which any director, director nominee, executive officer or holder of more than 5% of any class of our capital stock, or members of any such person’s immediate family, had or will have a direct or indirect material interest (each such transaction, a Related Party Transaction). Each Related Party Transaction has been approved by our Board, Audit Committee or Compensation Committee.
Other than compensation described above in “Management - Executive Compensation”, we believe that there have been no Related Party Transactions since January 1, 2011, other than those described below.
Transactions with Mr. Hoogenkamp
In 2011, Mr. Hoogenkamp, a director of the Company, performed consulting services for us under an independent contractor agreement dated April 30, 2008, as amended pursuant to a letter agreement dated September 18, 2009, and pursuant to a second amendment to independent contractor agreement dated December 4, 2010. Under the agreement, as amended, we agreed to pay Mr. Hoogenkamp a total of $90,000 as compensation for Mr. Hoogenkamp’s services in 2011. In addition, we issued Mr. Hoogenkamp 150,000 shares of our common stock which fully vested on December 31, 2011.
On June 30, 2011, we entered into a third amendment to independent contractor agreement with Mr. Hoogenkamp, which reduced the scope of Mr. Hoogenkamp’s consulting services and reduced his compensation during the period of July 1, 2011 through December 31, 2011. Mr. Hoogenkamp agreed to be paid $36,000 for his consulting services in 2011. In addition, we agreed to extend the exercise period for certain stock options issued to Mr. Hoogenkamp for the purchase of up to 440,000 shares of our common stock to June 30, 2015.
On September 8, 2011, Mr. Hoogenkamp agreed to accept 500,000 shares of our common stock in full satisfaction of $105,000 owed for services previously provided.
Effective January 1, 2012, under a one-year independent contractor consulting agreement, we issued Mr. Hoogenkamp 1,000,000 shares of our common stock, which vested in twelve equal monthly installments during 2012. On April 1, 2012, in connection with Mr. Hoogenkamp’s appointment to the Board, we terminated the independent contractor agreement and agreed to immediately vest all of the nonvested shares of common stock previously granted under the agreement. During 2011 and 2012, we paid Mr. Hoogenkamp $40,000 and $1,000, respectively, for fees owed under the independent contractor agreement.
In December 2012, we lowered the exercise price on options for the purchase of up to 500,000 shares to $0.08. The options had been granted to Mr. Hoogenkamp for services rendered prior to his appointment to the Board on April 1, 2012.
Transactions with Baruch Halpern
In January 2012, Baruch Halpern became a member of our board of directors. Mr. Halpern is a principal in Halpern Capital, Inc. (HC). Under a February 2011 financial advisor agreement we are obligated to pay HC success fees ranging from 2.5% to 5.0% of the consideration received from certain equity, convertible securities or debt transactions. We were also required to issue warrants to purchase shares of common stock that equal from 2.5% to 5.0% of the consideration received in those transactions, divided by either the market price of the common stock or the conversion price of the securities issued in the transaction. This agreement terminated April 1, 2012, however, we remained obligated to pay HC success fees and issue HC warrants on any transaction with an investor introduced by HC occurring though March 31, 2013.
We issued the transactional warrants listed in the table below under the terms of our financial advisor agreement with HC.
| | At Issuance in 2012 | | As of August 31, 2012 | |
| Date of Warrants | | Shares Underlying Warrant (#) | | | Exercise Price of Warrant at Issuance ($ Per Share) | | | | Shares Underlying Warrant (#) | | | Exercise Price of Warrant ($ Per Share) | | | |
| Jan. 17, 2012 | | | 250,000 | | | | 0.15 | | Jan. 17, 2017 | | | 535,714 | | | | 0.07 | | Jan. 17, 2017 | |
| Jan. 18, 2012 | | | 1,112,500 | | | | 0.10 | | Jan. 18, 2017 | | | 1,589,286 | | | | 0.07 | | Jan. 18, 2017 | |
| May 17, 2012 | | | 12,500 | | | | 0.10 | | May 17, 2017 | | | 17,857 | | | | 0.07 | | May 17, 2017 | |
| Jul. 31, 2012 | | | 482,142 | | | | 0.07 | | Jul. 31, 2017 | | | 482,142 | | | | 0.07 | | Jul. 31, 2017 | |
| Aug. 31, 2012 | | | 53,571 | | | | 0.07 | | Aug. 31, 2017 | | | 53,571 | | | | 0.07 | | Aug. 31, 2017 | |
| (1) | All of the transactional warrants contain full ratchet anti-dilution provisions and require the holders to provide us with at least 61 days notice prior to conversion or exercise to the extent the holder would have a beneficial ownership interest in our common stock in excess of 4.99% of our outstanding common stock immediately after conversion or exercise. |
| (2) | Effective July 31, 2012, the exercise prices on these transactional warrants were reduced under full ratchet anti-dilution provisions, to $0.07 per share and the number of underlying shares increased to equal the number of original underlying shares times the initial exercise price divided by $0.07 per share. |
During the period from January 1, 2011, to the date of this filing, we issued several convertible notes to Mr. Halpern and to the Shoshanna Shapiro Halpern Revocable Trust, a trust beneficially owned by Mr. Halpern (the Trust). In connection with the issuance of the convertible notes, we also issued warrants to Mr. Halpern and the Trust. The transactions are summarized below.
| | | Principal Amount of Note ($) | | | | | | Conversion Rate on Note ($ Per Share) | | | | Shares Underlying Warrant (#) | | | Exercise Price of Warrant ($ Per Share) | | | | Cash We Received for Note and Warrant ($) | |
Feb. 14, 2011 | (1) | | | 500,000 | | | | 8.5 | | | | 0.25 | | Feb. 13, 2013 | | | 500,000 | | | | 0.25 | | Feb. 13, 2015 | | | 500,000 | |
| June 29, 2011 | (2) | | | 739,052 | | | | 10.0 | | | | 0.21 | | June 30, 2014 | | | 730,000 | | | | 0.23 | | Dec. 14, 2014 | | | 230,000 | |
July 15, 2011 | (2) | | | 270,000 | | | | 10.0 | | | | 0.21 | | June 30, 2014 | | | 270,000 | | | | 0.23 | | Dec.14, 2014 | | | 270,000 | |
Aug. 31, 2011 | (2) | | | 730,000 | | | | 10.0 | | | | 0.21 | | June 30, 2014 | | | 730,000 | | | | 0.23 | | June 30, 2015 | | | 730,000 | |
Oct. 7, 2011 | (3) | | | 1,773,186 | | | | 10.0 | | | | 0.20 | | Oct. 7, 2014 | | | | | | | | | | | | - | |
Oct. 7, 2011 | (3) | | | 550,000 | | | | 10.0 | | | | 0.20 | | Oct. 7, 2014 | | | 2,323,186 | | | | 0.22 | | June 30, 2015 | | | 550,000 | |
Jan. 18, 2012 | (4) | | | 2,500,000 | | | | 10.0 | | | | 0.10 | | Jan. 18, 2015 | | | 25,000,000 | | | | 0.12 | | Jan. 18, 2018 | | | 112,523 | |
| July 31, 2012 | | | | 100,000 | | | | 10.0 | | | | 0.10 | | July 31, 2015 | | | 1,428,571 | | | | 0.08 | | July 31, 2017 | | | 100,000 | |
| (1) | The convertible note and warrant issued to Mr. Halpern February 14, 2011, were cancelled in connection with the issuance of the June 29, 2011 and July 15, 2011, convertible notes and warrants to Mr. Halpern. |
| (2) | The convertible notes and warrants issued to Mr. Halpern June 29, 2011, July 15, 2011, and August 31, 2011, were cancelled in connection with the issuance of the October 7, 2011, convertible notes and warrants to the Trust. |
| (3) | The convertible notes and warrants issued to the Trust October 7, 2011, were cancelled in connection with the issuance of the January 18, 2012, convertible notes and warrants to the Trust. |
| (4) | The convertible note and warrant issued to the Trust January 18, 2012, were issued in exchange for $112,523 and cancellation of the convertible notes and related warrant held by the Trust, dated October 7, 2011. |
As of the date of this filing the convertible notes and related warrants listed below remain outstanding:
| Investor | | Principal Amount of Note ($) | | | | | | Conversion Rate on Note ($ Per Share) | | | | Shares Underlying Warrant (#) | | | Exercise Price of Warrant ($ Per Share) | | | | Cash We Received for Convertible Notes and Warrants ($) | |
At Issuance in 2012 | | | | | | | | | | | | | | | | | | | | |
| Issued Jan. 18, 2012 | | | 2,500,000 | | | | 10.0 | | | | 0.10 | | Jan. 18, 2015 | | | 25,000,000 | | | | 0.12 | | Jan. 18, 2017 | | | 112,523 | |
| Issued July 31, 2012 | | | 100,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 1,428,571 | | | | 0.08 | | Jul. 31, 2017 | | | 100,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | |
As of August 31, 2013 | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Issued Jan. 18, 2012 | | | 2,500,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 35,714,286 | (1) | | | 0.08 | | Jul. 31, 2017 | | NA | |
| Issued July 31, 2012 | | | 100,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 1,428,571 | | | | 0.08 | | Jul. 31, 2017 | | NA | |
| (1) | On July 31, 2012, the warrants issued to the Trust were amended such that the exercise price decreased to $0.08 and the number of shares of common stock underlying such warrants increased from 25,000,000 to 35,714,286. In addition, the term of the warrant was extended to July 31, 2017. Had the warrant not been amended, the exercise price would have been reduced to $0.07 per share under the anti-dilution provisions in the warrant. |
The convertible notes and warrants listed above contain full ratchet anti-dilution provisions and require the holders to provide us with at least 61 days notice prior to conversion or exercise to the extent the holder would have a beneficial ownership interest in our common stock in excess of 4.99% of our outstanding common stock immediately after conversion or exercise. Interest on the convertible notes is payable monthly at an annual rate of 10%. We cannot prepay the notes. The holders of the notes may elect to receive shares of common stock in lieu of cash as payment of interest. The amount of shares issuable for the interest would be 120% of the accrued interest for a month divided by 80% of the 20 trading day volume weighted average price (VWAP) of our common stock as of the end of the applicable month. All unpaid interest and principal is due when the notes mature. The convertible notes are secured by a junior interest in substantially all of our assets, excluding our interest in our Nutra SA subsidiary.
In January 2012, we agreed to extend the expiration dates on certain warrants held by Mr. Halpern and his family, for the purchase of 5,166,520 shares of common stock at an exercise price of $0.10 per share from July 1, 2014 to January 18, 2017.
Effective April 1, 2013, we issued a promissory note in the principal amount of $50,000 to Mr. Halpern. The note bore interest at 10% and was repaid in full in June 2013.
Other transactions with Mr. Halpern, the Trust and HC are summarized in the table below (in thousands).
| | | | Jan. 1, 2013 to the Date of this Filing | | | 2012 | | | 2011 | |
| Success fees earned by HC under financial advisor agreement payable in cash | | | | $ | - | | | $ | 164 | | | $ | 26 | |
| Interest earned by Mr. Halpern and the Trust | | | | | 197 | | | | 243 | | | | 225 | |
| Interest paid to Mr. Halpern and the Trust | | | | | 71 | | | | 242 | | | | 7 | |
| Payments to HC relevant to HC's class 6 general unsecured creditor claim | (1 | ) | | | - | | | | 256 | | | | 754 | |
| (1) | HC had a class 6 general unsecured creditor claim as part of our payment obligations under an amended plan of reorganization. The claim represented payment for services rendered prior to our November 2009 bankruptcy petition filing. |
Other Related Party Transactions
Mr. Short, chief executive officer and director of the Company, Zanesville Partners Fund, LLC, which is beneficially owned by Mr. Lintzenich, a former director of the Company, and the Edward L. McMillan Revocable Trust, which is beneficially owned by Mr. McMillan, a former director of the Company, invested in our convertible notes and related warrants. Their investments are summarized in the table below.
| Investor | | Principal Amount of Note and Cash We Received ($) | | | | | | Conversion Rate on Note ($ Per Share) | | | | Shares Underlying Warrant (#) | | | Exercise Price of Warrant ($ Per Share) | | Expiration Date of Warrant | |
At Issuance January 18, 2012 | | | | | | | | | | | | | | | | | | |
| W. John Short | | | 25,000 | | | | 10.0 | | | | 0.10 | | Jan. 18, 2015 | | | 250,000 | | | | 0.12 | | Jan. 18, 2017 | |
| Zanesville Partners Fund, LLC | | | 50,000 | | | | 10.0 | | | | 0.10 | | Jan. 18, 2015 | | | 500,000 | | | | 0.12 | | Jan. 18, 2017 | |
| Edward L. McMillan Revocable Trust | | | 25,000 | | | | 10.0 | | | | 0.10 | | Jan. 18, 2015 | | | 250,000 | | | | 0.12 | | Jan. 18, 2017 | |
| | | | | | | | | | | | | | | | | | | | | | | |
At Issuance April 9, 2013 | | | | | | | | | | | | | | | | | | | | | | | |
| W. John Short | | | 25,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 357,143 | | | | 0.08 | | Jul. 31, 2017 | |
| | | | | | | | | | | | | | | | | | | | | | | |
As of August 31, 2013 | | | | | | | | | | | | | | | | | | | | | | | |
| W. John Short | | | 25,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 357,143 | | | | 0.08 | | Jul. 31, 2017 | |
| Zanesville Partners Fund, LLC | | | 50,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 857,143 | | | | 0.07 | | Jul. 31, 2017 | |
| Edward L. McMillan Revocable Trust | | | 25,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 428,571 | | | | 0.07 | | Jul. 31, 2017 | |
| W. John Short | | | 25,000 | | | | 10.0 | | | | 0.07 | | Jul. 31, 2015 | | | 357,143 | | | | 0.08 | | Jul. 31, 2017 | |
The convertible notes and warrants listed above contain full ratchet anti-dilution provisions and require the holders to provide us with at least 61 days notice prior to conversion or exercise to the extent the holder would have a beneficial ownership interest in our common stock in excess of 4.99% of our outstanding common stock immediately after conversion or exercise. Interest on each convertible note is payable monthly at an annual rate of 10%. We cannot prepay the notes. The notes are secured by a junior interest in substantially all of our assets, excluding our interest in our Nutra SA subsidiary. During 2012, we paid to Mr. Short, Zanesville Partners Fund, LLC and Edward L. McMillan Revocable Trust, interest on the convertible notes of $2,391, $4,781 and $2,391, respectively. From January 1, 2013, through the date of this filing, we paid Mr. Short, Zanesville Partners Fund, LLC and Edward L. McMillan Revocable Trust, interest on the convertible notes of $425, $3,753 and $1,877, respectively.
On June 18, 2013, Mr. Short made a payment-in-kind election for interest accruing under the notes from February 2013 through June 2014. In connection with the election, we issued 16,490 shares of common stock to Mr. Short on June 18, 2013. We also issued a warrant with 28,866 underlying shares and we increased the shares underlying Mr. Short’s convertible notes by 28,866 shares as payment for interest accruing under the convertible notes from February 1, 2013, through the date of this filing. The warrant expires May 31, 2018, and has an exercise price of $0.08 per share.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding beneficial ownership of our common stock as of August 31, 2013, by (i) each person or entity who is known by us to own beneficially more than 5% of the outstanding shares of that class or series of our stock, (ii) each of our directors, (iii) each of the named executive officers, and (iv) all directors and executive officers as a group.
The table is based on information provided to us or filed with the SEC by our directors, executive officers and principal shareholders. Beneficial ownership is determined in accordance with the rules of the SEC, and includes voting and investment power with respect to shares. Shares of common stock issuable upon exercise or conversion of options, warrants or promissory notes that are currently exercisable or convertible or are exercisable or convertible within 60 days after August 31, 2013, are deemed outstanding for purposes of computing the percentage ownership of the person holding such securities, but are not deemed outstanding for computing the percentage of any other shareholder. Unless otherwise indicated, the address for each shareholder listed in the following table is c/o RiceBran Technologies, 6720 N. Scottsdale Rd, Suite # 390, Scottsdale, AZ 85253.
| | Stock Beneficially Owned | | Stock Beneficially Owned | |
| | Prior to the Offerimg | | After the Offerimg | |
| | Number | | | Percentage | | Number | | Percentage | |
| Name and Address of Beneficial Owner | | | | | (1) | | | | (1) | |
| W. John Short (2) | | | 11,351,636 | | | | 4.75 | % | | | | | |
| David Goldman (3) | | | 884,994 | | | | * | | | | | | |
| Baruch Halpern (4) | | | 11,910,759 | | | | 4.99 | % | | | | | |
| Henk W. Hoogenkamp (5) | | | 3,327,130 | | | | 1.46 | % | | | | | |
| Robert C. Schweitzer (6) | | | 974,994 | | | | * | | | | | | |
| Jerry Dale Belt (7) | | | 2,439,029 | | | | 1.06 | % | | | | | |
| Colin Garner (8) | | | 1,102,506 | | | | * | | | | | | |
| | | | | | | | | | | | | |
| All directors and executive officers as a group (7 persons) (9) | | | 31,991,048 | | | | 14.11 | % | | | | | |
* less than 1%
| (1) | Applicable percentage of ownership is based on 226,781,797 shares of our common stock outstanding as of August 31, 2013, together with (i) shares issuable upon exercise of options and warrants exercisable within 60 days of August 31, 2013, and (ii) shares issuable upon conversion of debt convertible within 60 days of August 31, 2013. |
| (2) | Includes 249,900 shares held by the KAWJS Trust, 16,490 shares held by Mr. Short, 9,586,808 shares issuable upon exercise of options held by Mr. Short, 749,219 shares issuable upon exercise of warrants held by Mr. Short and 749,219 shares issuable upon conversion of promissory notes held by Mr. Short. |
| (3) | Includes 10,000 shares held by the David Goldman & Lois A Goldman TRS FBO GOLDMAN FAMILY TRUST UA 04/23/2004 and 874,994 shares issuable upon exercise of options held by Mr. Goldman. |
| (4) | Includes (i) 35,714,286 shares underlying a convertible promissory note and 35,714,286 shares underlying a warrant held by the Shoshana Shapiro Revocable Trust, (ii) 440,000 outstanding shares, 1,428,571 shares underlying a convertible promissory note and 3,641,284 shares subject to warrants held by Mr. Halpern, (iii) 350,000 outstanding shares and 6,923,886 shares underlying warrants held by the Baruch Halpern Revocable Trust and (iv) 1,086,601 shares issuable upon exercise of options held by Mr. Halpern. The convertible promissory notes and the warrants (Halpern Blocked Securities) are not exercisable or convertible into shares of our common stock to the extent such exercise or conversion would cause Mr. Halpern to beneficially own more than 4.99% of our outstanding common stock, unless the holders provide us with sixty one days’ prior written notice that the blockers should not apply. No such notice has been provided. Because of these blockers, the beneficial ownership described in the table above represents Mr. Halpern’s beneficial ownership of 4.99% of our common stock. |
| (5) | Includes 1,436,380 shares issuable upon exercise of options. |
| (6) | Includes 874,994 shares issuable upon exercise of options. |
| (7) | Includes 2,439,029 shares issuable upon exercise of options. |
| (8) | Includes 1,102,506 shares issuable upon exercise of options. |
| (9) | Includes 18,899,750 shares issuable upon exercise or conversion of options, warrants and promissory notes and 10,034,158 shares underlying the Halpern Blocked Securities. |
DESCRIPTION OF SECURITIES
Our authorized capital stock consists of 1,200,000,000 shares of common stock, no par value, and 20,000,000 shares of Preferred Stock, no par value, of which 3,000,000 shares are designated Series A Preferred Stock, 25,000 shares are designated Series B preferred Stock, 25,000 shares are designated Series C Preferred Stock, 10,000 shares are designated Series D Preferred Stock and 2,743 shares are designated Series E Preferred Stock. As of September 26, 2013, there were 226,781,797 shares of common stock outstanding and no shares of preferred stock outstanding.
Common Stock
Holders of our common stock are entitled to receive ratably dividends when, as, and if declared by our board of directors out of funds legally available therefor. Upon our liquidation, dissolution, or winding up, the holders of our common stock are entitled to receive ratably the net assets available after the payment of all debts and other liabilities and subject to the prior rights of our outstanding preferred shares, if any. However, there are no assurances that upon any such liquidation or dissolution, there will be any net assets to distribute to the holders of our common stock.
The holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of our shareholders. Under certain circumstances, California law permits the holders of our common stock to cumulate their votes for the election of directors, in which case holders of less than a majority of the outstanding shares of our common stock could elect one or more of our directors. Holders of our common stock have no preemptive, subscription, or redemption rights. The outstanding shares of our common stock are fully paid and nonassessable. The rights and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of holders of shares of preferred stock that we may designate and issue in the future.
Preferred Stock
Our board of directors is authorized to issue preferred stock in one or more series and to fix the rights, preferences, privileges, qualifications, limitations and restrictions thereof, including dividend rights and rates, conversion rights, voting rights, terms of redemption, redemption prices, liquidation preferences and the number of shares constituting any series or the designation of such series, without any vote or action by our shareholders. Any preferred stock to be issued could rank prior to our common stock with respect to dividend rights and rights on liquidation. Our board of directors, without shareholder approval, may issue preferred stock with voting and conversion rights which could adversely affect the voting power of holders of our common stock and discourage, delay or prevent a change in control of the Company.
Warrants
As of August 31, 2013, warrants for the issuance of 143,252,425 shares of our common stock were outstanding, all of which are exercisable at a weighted average exercise price of $0.08 per share, and all of which are exercisable through various dates expiring between October 13, 2013 and July 18, 2018. Outstanding warrants to acquire 46,409,326 and 92,668,612 shares of our common stock include a price protection mechanism in which the exercise price of these warrants will automatically be lowered in the event we issue shares of our common stock for a price less than $0.07 and $0.08, respectively, per share.
The descriptions of the warrants are only a summary and are qualified in their entirety by the provisions of the forms of the warrant, which are attached or referenced to the registration statement of which this prospectus forms a part.
Transfer Agent and Warrant Agent
American Stock Transfer & Trust Company, New York, New York, serves as transfer agent for our common stock. American Stock Transfer & Trust Company will also act as the warrant agent for the warrants issued under this offering.
We have entered into an underwriting agreement with Maxim Group LLC [acting as the sole book-running manager and sole representative for the underwriters named below.] Subject to the terms and conditions of the underwriting agreement, the underwriters named below have agreed to purchase, and we have agreed to sell to them, the number of shares of common stock and warrants to purchase common stock at the public offering price, less the underwriting discounts and commissions, as set forth on the cover page of this prospectus and as indicated below:
| Underwriter | | Number of Shares |
| Maxim Group LLC | | |
| ________________ | | |
| | | |
| Total | | |
The underwriting agreement provides that the obligations of the underwriters to pay for and accept delivery of the shares and warrants offered by this prospectus are subject to the approval of certain legal matters by their counsel and to other conditions. The underwriters are obligated to take and pay for all of the shares and warrants offered by this prospectus if any such shares and warrants are taken, other than those shares and warrants covered by the over-allotment option described below.
Over-Allotment Option
We have granted to the underwriters an option, exercisable not later than 45 days after the effective date of the registration statement, to purchase up to _____ additional shares and warrants, consisting of an aggregate of ____________ shares of common stock and warrants to purchase an aggregate of _____ shares of common stock, at a per share price of $______ less the underwriting discounts and commissions set forth on the cover of this prospectus. The underwriters may exercise this option only to cover over-allotments made in connection with this offering. To the extent that the underwriters exercise this option, each of the underwriters will become obligated, subject to conditions, to purchase approximately the same percentage of these additional shares and warrants as the number of shares and warrants to be purchased by it in the above table bears to the total number of shares and warrants offered by this prospectus. We will be obligated, pursuant to the option, to sell these additional shares and warrants to the underwriters to the extent the option is exercised. If any additional shares and warrants are purchased, the underwriters will offer the additional shares and warrants on the same terms as those on which the other shares and warrants are being offered hereunder.
Commissions
We have agreed to pay the underwriters (i) a cash fee equal to eight percent of the aggregate gross proceeds raised in this offering and (ii) warrants to purchase that number of shares of our common stock equal to an aggregate of ten percent (10%) of the shares of common stock sold in the offering (or _______ shares). Such underwriters’ warrants shall have an exercise price equal to $_______ per share, which is 110% of the public offering price, terminate five years after issuance, and otherwise have the same terms as the warrants sold in this offering except that (1) they will not be subject to redemption by the Company and (2) they will provide for unlimited “piggyback” registration rights with respect to the underlying shares during the two year period commencing six months after the effective date of this offering. Such underwriters’ warrants will be subject to FINRA Rule 5110(g)(1) in that, except as otherwise permitted by FINRA rules, for a period of 180 days following the effectiveness of the registration statement, of which this prospectus forms a part, the underwriters’ warrants shall not be (A) sold, transferred, assigned, pledged, or hypothecated, or (B) the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person.
The representative has advised us that the underwriters propose to offer the shares and warrants directly to the public at the public offering price set forth on the cover of this prospectus. In addition, the representative may offer some of the shares and warrants to other securities dealers at such price less a concession of up to $_________ per share. After the offering to the public, the offering price and other selling terms may be changed by the representative without changing the Company’s proceeds from the underwriters’ purchase of the shares and warrants.
The following table summarizes the public offering price, underwriting commissions and proceeds before expenses to us assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares and warrants. The underwriting commissions are equal to the public offering price per share less the amount per share the underwriters pay us for the shares and warrants.
| Per Share(1) | | Total Without Over Allotment | | Total With Over- Allotment | |
| Public Offering price | | | | | | |
| Underwriting discounts and commissions | | | | | | |
| Proceeds, before expenses, to us | | | | | | |
| (1) | The fees shown do not include the warrant to purchase shares of common stock issuable to the underwriters at closing. |
We estimate that the total expenses of the offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding underwriting discounts and commissions, will be approximately $__________, all of which are payable by us. In addition, the underwriters will receive commemorative lucite (or other reasonable form) memorabilia and bound books valued up to $1,500.
Lock-Up Agreements
We and each of our officers, directors, and certain existing stockholders aggregating at least ___% of our outstanding shares, have agreed, subject to certain exceptions, not to offer, issue, sell, contract to sell, encumber, grant any option for the sale of or otherwise dispose of any shares of our common stock or other securities convertible into or exercisable or exchangeable for shares of our common stock for a period of _____ (_) months after the effective date of the registration statement of which this prospectus is a part without the prior written consent of Maxim Group LLC.
Maxim Group LLC may in its sole discretion and at any time without notice release some or all of the shares subject to lock-up agreements prior to the expiration of the lock-up period. When determining whether or not to release shares from the lock-up agreements, the representative will consider, among other factors, the security holder’s reasons for requesting the release, the number of shares for which the release is being requested and market conditions at the time.
Price Stabilization, Short Positions and Penalty Bids
In connection with this offering, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of our common stock. Specifically, the underwriters may over-allot in connection with this offering by selling more shares and warrants than are set forth on the cover page of this prospectus. This creates a short position in our common stock for its own account. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares common stock or warrants over-allotted by the underwriters is not greater than the number of shares of common stock or warrants that they may purchase in the over-allotment option. In a naked short position, the number of shares of common stock or warrants involved is greater than the number of shares common stock or warrants in the over-allotment option. To close out a short position, the underwriters may elect to exercise all or part of the over-allotment option. The underwriters may also elect to stabilize the price of our common stock or reduce any short position by bidding for, and purchasing, common stock in the open market. Since the warrants will not be listed and are not expected to trade, the underwriters cannot purchase the warrants in the open market and, as a result, the underwriters cannot and will not enter into naked short positions.
The underwriters may also impose a penalty bid. This occurs when a particular underwriter or dealer repays selling concessions allowed to it for distributing a security in this offering because the underwriter repurchases that security in stabilizing or short covering transactions.
Finally, the underwriters may bid for, and purchase, shares of our common stock in market making transactions, including “passive” market making transactions as described below.
These activities may stabilize or maintain the market price of our common stock at a price that is higher than the price that might otherwise exist in the absence of these activities. The underwriters are not required to engage in these activities, and may discontinue any of these activities at any time without notice. These transactions may be effected on ______________, in the over-the-counter market, or otherwise.
In connection with this offering, the underwriters and selling group members, if any, or their affiliates may engage in passive market making transactions in our common stock immediately prior to the commencement of sales in this offering, in accordance with Rule 103 of Regulation M under the Exchange Act. Rule 103 generally provides that:
| · | a passive market maker may not effect transactions or display bids for our common stock in excess of the highest independent bid price by persons who are not passive market makers; |
| · | net purchases by a passive market maker on each day are generally limited to 30% of the passive market maker’s average daily trading volume in our common stock during a specified two-month prior period or 200 shares, whichever is greater, and must be discontinued when that limit is reached; and |
| · | passive market making bids must be identified as such. |
Other Terms
Commencing on August 6, 2013 and for a period of 12 months thereafter, we have agreed to pay Maxim Group LLC a monthly advisory fee of $10,000.
In addition, we have agreed to reimburse the underwriters for all reasonable out-of-pocket expenses up to $100,000, including but not limited to reasonable legal fees, incurred by the underwriters in connection with the offering. Any expenses in excess of $10,000, excluding fees for legal counsel, shall be subject to the prior approval of the Company, which such approval shall not be unreasonably withheld. The Company shall reimburse the underwriters for all such expenses regardless of whether the offering is consummated.
The underwriters and their affiliates may in the future provide various investment banking and other financial services for us, for which they may receive, in the future, customary fees. On August 6, 2013, we entered into an engagement agreement with Maxim Group LLC to provide advisory services related to potential mergers and acquisitions of the Company.
Indemnification
We have agreed to indemnify the underwriters against liabilities relating to the offering arising under the Securities Act and the Exchange Act, liabilities arising from breaches of some or all of the representations and warranties contained in the underwriting agreement, and to contribute to payments that the underwriters may be required to make for these liabilities.
Electronic Distribution
A prospectus in electronic format may be made available on a website maintained by the representatives of the underwriters and may also be made available on a website maintained by other underwriters. The underwriters may agree to allocate a number of shares to underwriters for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives of the underwriters to underwriters that may make Internet distributions on the same basis as other allocations. In connection with the offering, the underwriters or syndicate members may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses that are printable as Adobe® PDF will be used in connection with this offering.
The underwriters have informed us that they do not expect to confirm sales of shares and warrants offered by this prospectus to accounts over which they exercise discretionary authority.
Other than the prospectus in electronic format, the information on any underwriter’s website and any information contained in any other website maintained by an underwriter is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or any underwriter in its capacity as underwriter and should not be relied upon by investors.
