**EXHIBIT4.44**

** **

**PUT/CALL AGREEMENT**

 

This put/call agreement (the “Agreement”) is made asof this 15th day of January, 2002, by and between NutraStarIncorporated, a California corporation (“NutraStar”) and The RiceX Company, aDelaware corporation (“RiceX”).

 

R EC I T A L S

 

A.            RiceXhas agreed to purchase 130,000 shares of Series A Preferred Stock ofNutraStar (the “Shares”) in exchange for cancellation of indebtedness (the“Debt Exchange”) pursuant to that certain Subscription Agreement dated as ofDecember 10, 2001 (the “Subscription Agreement”) by and between AllianceConsumer International, Inc. (now NutraStar Incorporated) (“NutraStar”) andRiceX.

 

B.            Asa condition to the Debt Exchange, NutraStar has agreed to grant RiceX an optionto sell the Shares to NutraStar, and RiceX has agreed to grant NutraStar anoption to purchase the Shares from RiceX, all upon the terms and conditionshereinafter set forth.

 

NOW THEREFORE, in consideration of the foregoing, andfor other valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties agree as follows:

 

1.                                       PutRight.

 

NutraStar hereby irrevocably grants and issues toRiceX the right and option to sell to NutraStar (hereinafter referred to as the“Put Right”) all but not less than all of the Shares or shares of Common Stockinto which the Shares have been converted (the term “Shares” is hereinafterused to refer to the Shares and any shares of Common Stock into which theShares may have been converted) at a purchase price of One Hundred ThirtyThousand Dollars ($130,000.00) (the “Purchase Price”), plus all accumulated butunpaid dividends, if any, subject to adjustment as provided in Section 4hereof.  RiceX may exercise the PutRight and sell to NutraStar, and NutraStar agrees to purchase from RiceX, allbut not less than all of the Shares at any time after six months from the datehereof by giving NutraStar written notice of its intent to exercise its PutRight in accordance with Section 3(a) below (the “Put Right Notice”).

 

2.                                       CallRight.

 

RiceX hereby irrevocably grants and issues toNutraStar and/or its assigns the right and option to purchase from RiceX(hereinafter referred to as the “Call Right”) all but not less than all of theShares at the Purchase Price, plus all accumulated but unpaid dividends, ifany, subject to adjustment as provided in Section 4 hereof.  NutraStar and/or its assigns may exercisethe Call Right and purchase from RiceX, and RiceX agrees to sell to NutraStarand/or its assigns, all but

 

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notless than all of the Shares at any time after the date hereof by giving RiceXwritten notice of its intent to exercise its Call Right in accordance withSection 3(a) below (the “Call Right Notice”).

 

3.                                       Paymentand Delivery of Shares.

 

(a)           Subjectto this Section 3, NutraStar shall, within sixty (60) days after receiptof a Put Right Notice or delivery of a Call Right Notice, as applicable (the“Closing”), pay to RiceX, in cash or by certified, cashier’s or other checkacceptable to RiceX, the relevant Purchase Price, and RiceX shall deliver toNutraStar at the Closing a stock certificate or certificates representing thetotal number of Shares being transferred, duly endorsed in blank by RiceX orhaving attached thereto a stock power duly executed by RiceX in proper form fortransfer.

 

(b)           Inthe event that any payment to be made by NutraStar is prohibited by applicableprovisions of corporate law or by any other applicable law, then such paymentshall be immediately made by NutraStar at the next earliest time, and to theextent possible, when compliance with said law may be effected, and NutraStaragrees that it will execute all such documents and take all such other steps asmay be necessary to expedite and effectuate to the extent possible suchcompliance.  NutraStar specificallyacknowledges that RiceX shall be under no obligation to transfer the Sharesunless and until a cash payment is made.

 

4.                                       Adjustmentof Purchase Price.

 

In the event of any stock dividend, stock split,combination of shares, subdivision or other recapitalization of the Shares,then the number of Shares and the Purchase Price shall be proportionatelyadjusted to take into account each of any such events, so that upon theexercise of the Put Right or Call Right provided for herein, RiceX shall beentitled to put or NutraStar shall be able to call, as applicable, such numberof Shares, and RiceX shall receive such Purchase Price, as it would have beenentitled to do or receive after the happening of any such event had the PutRight or Call Right been exercised immediately prior to the happening of anysuch event.

 

5.                                       Miscellaneous.

 

(a)           Eachparty agrees that upon the request of the other it will, from time to time,execute and deliver to such other party all such instruments and documents offurther assurance or otherwise, and will do any and all such acts and things,as reasonably may be required to carry out the obligations of such partyhereunder and consummate the transactions contemplated hereby.

 

(b)           Theheadings of this Agreement are included for purposes of reference andconvenience only and shall not limit or otherwise affect the construction orinterpretation of any of the provisions of this Agreement.

 

(c)           ThisAgreement, including all exhibits, constitutes the entire agreement between theparties hereto pertaining to the subject matter hereof and supersedes all priorand contemporaneous agreements and understandings of the parties in connectionherewith.  No

 

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supplement,modification or amendment of this Agreement shall be effective unless executedin writing by the parties hereto.

 

(d)           Wheneverthe service or the giving of any document or consent by or on behalf of anyparty hereto upon any other party is herein provided for, or becomes necessaryor convenient under the provisions of this Agreement or any document relatedhereto, a valid and efficient service of such document shall be effected bydelivering the same in writing to such party in person, by Federal Express orother reputable courier, by facsimile, or by sending the same by registered orcertified mail, return receipt requested, and shall be deemed received uponpersonal delivery if delivered personally, by Federal Express or otherreputable courier or by facsimile, or four (4) business days after deposit inthe mail in the United States, postage prepaid, addressed to the person toreceive such notice or communication at the following address:

 
| NutraStar: | 1261  Hawks Flight Court         |
|------------|----------------------------------|
|       | El  Dorado Hills, CA  95762 |
|       | Attn:  Patricia McPeak      |
|       | Telephone:  (916) 933-7000  |
|       | Facsimile:  (916) 933-7001       |
|       |                             |
| RiceX:     | 1241  Hawks Flight Court         |
|       | El  Dorado Hills, CA  95762 |
|       | Attn:  Todd C. Crow         |
|       | Telephone:  (916) 933-3000  |
|       | Facsimile:  (916) 933-3333  |

 

Notice of change of address shall be given by written notice in themanner detailed in this section 5(d).

 

(e)           ThisAgreement may be executed in counterparts, each of which shall be deemed anoriginal, but all of which, together, shall constitute one and the sameinstrument.

 

(f)            ThisAgreement shall be construed in accordance with, and shall be governed by, thelaws of the State of California.

 

(g)           Neitherparty shall be entitled to assign any of its rights or obligations under thisAgreement without the prior written consent of the other party, which consentshall not be unreasonably withheld. Subject to the foregoing, this Agreement shall be binding upon andenforceable by, and shall inure to the benefit of, the parties hereto and theirrespective successors and assigns.

 

(h)           Inthe event any portion of this Agreement shall be declared by any court ofcompetent jurisdiction to be invalid, illegal or unenforceable, such portionshall be deemed severed from this Agreement, and the remaining parts hereofshall remain in full force and effect, as fully as though such invalid, illegalor unenforceable portion had never been a part of this Agreement.

 

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(i)            Asused in this Agreement, the masculine, the feminine and the neuter gender, andthe singular or plural number, shall be deemed to include the others whereverthe context so indicates or requires.

 

(j)            Inthe event of the bringing of any action by any party hereto against any otherparty arising out of this Agreement, the party who is determined to be theprevailing party shall be entitled to recover from the other party all costsand expenses of suit, including reasonable attorneys’ fees.

 

IN WITNESS WHEREOF, the parties hereto have executedthis Agreement as of the day and year first above written.

 
|   | NutraStar Incorporated   |
|--------|--------------------------|
|   | a California corporation |
|   | (“NutraStar”)  |
|   |                     |
|   |                     |
|   | By:                      | /s/ Patricia McPeak |   |
|   |                     | Patricia McPeak, President and |
|   |                     | Chief Executive Officer |
|   |                     |
|   | The RiceX Company        |
|   | a Delaware corporation   |
|   | (“RiceX”)      |
|   |                     |
|   | By:                      | /s/ Todd C. Crow |   |
|   |                     | Todd C. Crow, Chief Financial Officer |
|        |                          |  |  |  |  |  |

 

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