As filed with the Securities and Exchange Commission on November 19, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S - 8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NUTRACEA
(Exact name of registrant as specified in its charter)
CALIFORNIA 87-0673375
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1261 HAWK'S FLIGHT COURT
EL DORADO HILLS, CALIFORNIA 95762
(Address of Principal Executive Offices) (Zip Code)
2003 STOCK COMPENSATION PLAN
(Full title of the plan)
JOHN HOWELL
1261 HAWK'S FLIGHT COURT
EL DORADO HILLS, CALIFORNIA 95762
With a Copy to
LAWRENCE E. WILSON
FRANKLIN, CARDWELL & JONES
1001 MCKINNEY, 18TH FLOOR
HOUSTON, TX 77002
(Name and address of agent for service)
(916) 933-7000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE PROPOSED PROPOSED
OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED(1) BE REGISTERED(1) PRICE PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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Common Stock 10,000,000 $ 1.85 $ 18,500,000 $ 1,496.65
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans(s) described herein.
(2) Pursuant to Rule 457(g) under the Securities Act of 1933, the offering
price of shares of Common Stock to be purchased pursuant to the Plan is based on
the average of the bid and asked prices on November 14, 2003 for the purposes of
computing the filing fees.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-KSB for the year ended December 31,
2002, Quarterly Report on Form 10-QSB for the quarter ended March 31, 2003,
Quarterly Report on Form 10-QSB for the quarter ended June 30, 2003, Quarterly
Report on Form 10-QSB for the quarter ended September 30, 2003, and the
description of the Company's Common Stock included in its registration statement
on Form 10-SB filed April 19, 2001 pursuant to Section 12(g) of the Securities
Exchange Act of 1934 are incorporated herein by reference. All documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. The Company's Quarterly Reports on Form 10-QSB for the
quarters ended March 31, 2003, June 30, 2003 and September 30, 2003, which are
incorporated herein by reference, should be read in conjunction with the audited
financial statements incorporated herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 204 of the California General Corporation Law provides that a
corporation may, in its Articles of Incorporation, eliminate or limit the
personal liability of a director for monetary damages in an action brought by or
in the name of the corporation for a breach of a director's duties to the
corporation except to the extent that the liability arises from intentional
misconduct or knowing violation of law, actions contrary to the best interests
of the corporation or involving the absence of good faith, transactions in which
a director receives an improper benefit, actions that violate the director's
duty of care, or actions for which directors have personal liability under the
California General Corporation Law.
Section 317 of the California General Corporation Law provides that a
corporation has the power to indemnify any person who was or is a party or is
threatened to be made a party to any proceeding if such person acted in good
faith and in a manner the person reasonably believed to be in the best interest
of the corporation. If the proceeding is a criminal proceeding the person to be
indemnified must also have had no reasonable cause to believe that such person's
conduct was unlawful. Such indemnity may be granted by the corporation if the
person is successful in
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the defense of the matter or if it is determined that such indemnity is proper
by a quorum of directors that are not involved in such proceeding, by an
independent counsel in a written opinion, by a majority of the shareholders, or
the court in which such proceeding is pending.
The Company has adopted provisions in its Articles of Incorporation and
Bylaws to limit the liability of directors and provide indemnity to the full
extent permitted by the California General Corporation Law. Such provisions are
sufficiently broad to permit the indemnification of such persons in certain
circumstances against liabilities arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors and officers, and to persons controlling our
company pursuant to the foregoing provisions, we have been informed that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration Statement
pursuant to Item 601 of Regulation S-B.
4.1 2003 Stock Compensation Plan.
5.1 Opinion of Franklin, Cardwell & Jones.
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP, independent
public accountants.
23.2 Consent of Franklin, Cardwell & Jones (included in Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of El Dorado Hills, and the State of California, on
November 11, 2003.
NUTRACEA
/s/ John Howell
By: ___________________________________
John Howell
Chief Executive Officer
/s/ Joanna Hoover
By: ___________________________________
Joanna Hoover
Chief Financial Officer
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Each person whose signature appears below constitutes and appoints John
Howell and Joanna Hoover true and lawful attorneys-in-fact and agents, each
acting alone, with full powers of substitution and re-substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, each acting alone, full powers and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on November 11, 2003.
/s/ John Howell /s/ Patricia McPeak
______________________________ _______________________________
John Howell Patricia McPeak
Director Director
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EXHIBIT INDEX
4.1 2003 Stock Compensation Plan
5.1 Opinion of Franklin, Cardwell & Jones
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.2 Consent of Franklin, Cardwell & Jones (included in Exhibit 5.1)
24.1 Power of Attorney (included on Signature Page)
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