form8-k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of report (Date of earliest event reported): September 28,
2007
NUTRACEA
(Exact
Name of Registrant as Specified in Charter)
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California
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0-32565
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87-0673375
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(State
or other jurisdiction of
incorporation)
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(Commission
File Number)
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(IRS
Employer Identification
No.)
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5090
N. 40th Street, Suite 400
Phoenix,
AZ
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85018
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (602) 522-3000
(Former
name or Former Address, if Changed Since Last Report.)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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¨
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Written
communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 1.01.
Entry into a Material Definitive Agreement.
NutraCea
has previously disclosed in filings with the Securities and Exchange Commission
(“SEC”) that in April 2007 it acquired shares of Series D convertible preferred
stock and 12% secured convertible notes (the “Notes”) of Vital Living, Inc.,
from the holders of those outstanding securities, for an aggregate of
approximately $5,226,000. NutraCea acquired 1,000,000 shares of
Series D preferred stock of Vital Living, which constitutes all of the
outstanding shares of Series D preferred stock of Vital Living, from the
holder
thereof for $1,000,000, and approximately $4,226,000 aggregate principal
amount
of Notes, representing all of the outstanding Notes, from the holders of
the
Notes. NutraCea also reported in its quarterly report on Form 10-Q
for the six months ended June 30, 2007, that in June 2007 NutraCea entered
into
a non-binding letter of intent with Vital Living to acquire certain of its
assets.
On
September 28, 2007, NutraCea entered into an Asset Purchase Agreement (the
“Purchase Agreement”) with Vital Living. The Purchase Agreement
provides that NutraCea will purchase substantially all of Vital Living’s
intellectual property and other assets used by Vital Living and certain
subsidiaries in its business, including rights to nutritional supplements
and
nutraceutical products that are marketed for distribution to healthcare
practitioners. As part of the transaction, Vital Living will assign to
NutraCea its rights under various distribution and other agreements relating
to
the products being acquired. NutraCea will not acquire inventory, raw
materials, cash or accounts receivable of Vital Living.
The
purchase price consists of (i) $1,500,000 to be paid by NutraCea at the closing,
(ii) cancellation of outstanding indebtednesses of Vital Living, its
subsidiaries and certain related entities to NutraCea, including all of the
Notes, and (iii) cancellation of all shares of Series D Preferred Stock of
Vital
Living held by NutraCea.
Completion
of the transaction is subject to a variety of customary closing conditions,
including, among other things, approval of the transaction by the stockholders
of Vital Living at a special meeting of stockholders of Vital Living and
the
absence of a material adverse effect on the assets between the date of the
agreement and the closing date. NutraCea anticipates that Vital
Living will prepare and file with the SEC a proxy statement relating to the
transaction. NuraCea expects that the transaction will close in the
fourth quarter of 2007, although the actual timing of the closing will depend
on
many factors including preparation of the proxy statement and the SEC’s review
of the proxy statement, and the closing may occur later than the fouth quarter
of 2007.
The
Purchase Agreement contains customary representations and warranties of the
parties, covenants, closing conditions, and certain termination rights for
both
NutraCea and Vital Living, and further provides that, upon termination of
the
Purchase Agreement under specified circumstances, Vital Living may be required
to pay NutraCea a termination fee. The representations and warranties
contained in the Purchase Agreement (i) are made for the purposes of
allocation of risk between the parties and as conditions to closing, and
(ii) are not necessarily accurate or complete as made and should not be
relied upon by any of our stockholders or potential investors.
The
Purchase Agreement is filed as an exhibit to this report. The foregoing
description is qualified in its entirety by reference to the full text of
the
Purchase Agreement.
Additional
Information About the Transaction and Where to Find
It
Additional
information regarding the foregoing is available in NutraCea’s Quarterly Report
for the quarter ended on June 30, 2007 on Form 10-Q filed with the Securities
and Exchange Commission on August 14, 2007. In
connection with the proposed transaction, NutraCea expects that Vital Living
will file a proxy statement and other materials with the Securities and Exchange
Commission. Vital Living stockholders are urged to read the proxy
statement (including any amendments or supplements to the proxy statement)
regarding the proposed transaction when it becomes available before making
any
voting decision with respect to the merger. The proxy statement will
contain important information about Vital Living, NutraCea and the proposed
transaction. Vital Living stockholders will be able to
obtain a copy of the proxy statement and other relevant documents, when they
become available and without charge, at the SEC’s Internet site
(http://www.sec.gov).
Participants
in the Solicitation
NutraCea
and its directors and executive officers and Vital Living and its directors
and
executive officers may be deemed to be participants in the solicitation of
proxies from the stockholders of Vital Living in connection with the proposed
transaction. Information regarding the special interests of these
directors and executive officers in the merger transaction will be included
in
the proxy statement referred to above. This document will be
available free of charge at the SEC’s web site (http://www.sec.gov) and from
Investor Relations at Vital Living at the address described above.
Forward-Looking
Statements
This
report contains forward-looking statements. These statements may be
identified by the use of forward-looking terminology such as "anticipate,"
"believe," "continue," "could," "estimate," "expect," "intend," "may," "might,"
"plan," "potential," "predict," "should," or "will," or the negative thereof
or
other variations thereon or comparable terminology. NutraCea has
based these forward-looking statements on the current expectations, assumptions,
estimates and projections. While NutraCea believes its expectations,
assumptions, estimates and projections are reasonable, such forward-looking
statements are only predictions and involve known and unknown risks and
uncertainties, many of which are beyond our control. Such risks and
uncertainties relate to, among other factors: the risk that the transaction
may
not be completed or that the closing of the transaction may be delayed, and
the
risk of a material adverse event affecting Vital Living or the assets proposed
to be sold. You should also review our discussion of risk factors and
other disclosures in NutraCea’s Annual Report on Form 10-K for the year ended
December 31, 2006 and other filings with the Securities and Exchange
Commission.
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Item 9.01
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Financial
Statements and
Exhibits.
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Asset
Purchase Agreement, dated as of September 28, 2007, between
NutraCea and
Vital Living, Inc.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned
hereunto
duly authorized.
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NUTRACEA
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Date:
October 4, 2007
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By:
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/s/
Todd C. Crow
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Todd
C. Crow
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Chief
Financial Officer
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(Duly
Authorized Officer)
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