Exhibit 3.19
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the ________
day of February 1997, by and among Food Extrusion, Inc., a Nevada corporation
(the "Company"), and Monsanto Company, a Delaware corporation ("Monsanto").
R E C I T A L S:
A. The Company and Monsanto have entered into that certain letter
agreement dated as of October 31, 1996, as amended by Addendum No. 1 (together,
"the Letter Agreement") which grants Monsanto certain registration rights with
respect to shares of the Company's Common Stock issued to Monsanto upon
conversion of that certain promissory note dated as of November 1, 1996, payable
by the Company to Monsanto (the "Note").
B. The Company and Monsanto wish to set forth the registration rights
and certain other rights of Monsanto with respect to such shares of Common Stock
in this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as
follows:
1.1 Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and regulations
of the Securities and Exchange Commission ("SEC") thereunder, all as the same
may be in effect at that time;
(b) The terms "Register", "Registered" and
"Registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
and the declaration or ordering of effectiveness of such registration statement
or document;
(c) "Registrable Securities" shall mean any Common
Stock of the Company issued to Monsanto (or any successor or assignee thereof)
upon full or partial conversion of the Note; provided, however, that such shares
shall no longer be treated as Registrable Securities if (i) they have been sold
through a broker or dealer or underwriter in a public distribution or (ii) they
have been sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act so that all transfer restrictions
and restrictive legends with respect thereto are removed upon consummation of
such sale.
(d) "Holder" shall mean Monsanto or any person who
holds outstanding Registrable Securities which have not been sold to the public,
but only if such person is an assignee or transferee thereof in accordance with
Section 3 hereof;
(e) "Registration Expenses" shall mean all expenses
incurred by the Company in complying with Sections 1.2 and 1.3 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration.
(f) "Selling Expenses" shall mean fees and
disbursements of counsel for the Holder or Holders and all underwriting
discounts, selling commissions and stock transfer taxes applicable to the
securities registered by the Holder.
(g) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any similar federal statute and the rules and
regulations of the SEC thereunder, all as the same may be in effect at that
time.
1.2 Request for Registration.
(a) If the Company shall receive at any time, a written
request from a Holder or Holders that the Company file a registration statement
under the Securities Act covering the registration of at least fifty percent
(50%) of the Registrable Securities then outstanding (or a lesser percentage of
such Registrable Securities provided that the Registrable Securities sought to
be registered have an anticipated aggregate offering price, net of underwriting
discounts and commissions, of at least $1 million), then the Company shall,
within ten (10) days of the receipt thereof, give written notice of such request
to all other Holders, if any, and shall, as soon as practicable and subject to
the limitations of Section 1.2(b), use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which such
Holder requests to be registered within twenty (20) days of the mailing of such
notice by the Company.
(b) If such Holder or Holders intend to distribute the
Registrable Securities covered by the request by means of an underwriting, such
Holder or Holders shall so advise the Company as a part of the request made
pursuant to this Section 1.2 and the Company shall include such information in
the written notice referred to in Section 1.2(a). In such event, the right of
any Holder to include its Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Holders, such Holder
and the Company) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company as provided in Section 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Holder or Holders and the Company in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then such Holders shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder; provided, however, that, in the event of any such allocation, the
Holders may withdraw their request for registration, and such withdrawn request
shall not constitute a request hereunder and, anything contained in Section 1.6
to the contrary notwithstanding, the Company shall pay all Registration Expenses
in connection therewith.
(c) The Company is obligated to effect only one (1)
such registration pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, if the Company shall
furnish to the Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of Holder.
(e) The Company shall not be required to cause a
Registration Statement requested pursuant to this Section 1.2 to become
effective prior to one hundred twenty (120) days following the effective date of
a Registration Statement initiated by the Company if the request for
registration has been received by the Company subsequent to the giving of
written notice by the Company pursuant to Section 1.3 and the Company-initiated
registration statement is declared effective not more than one hundred twenty
(120) days from the giving of such notice.
1.3 Company Registration.
(a) If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders other than the Holder or Holders) any of its
stock or other securities under the Securities Act in connection with the public
offering of such securities solely for cash (other than a registration relating
solely to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan, or a registration relating to a Rule 145
transaction or a registration on any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities) the Company shall,
each such time, promptly give the Holder or Holders written notice of such
registration. Upon the written request of any Holder given within twenty (20)
days after mailing of such notice by the Company, the Company shall, subject to
the provisions of Section 1.3(b), cause to be registered under the Securities
Act all of the Registrable Securities that such Holder has requested to be
registered.
(b) In connection with any offering involving an
underwriting of shares, the Company shall not be required under this Section 1.3
to include any of Holder's or Holders' Registrable Securities in such
underwriting unless such Holders accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it, and then only in
such quantity as will not, in the opinion of the underwriters, jeopardize the
success of the offering by the Company or the Company's shareholders demanding
such registration. If the total amount of Registrable Securities that such
Holders request to be included in such offering exceeds (when combined with the
securities being offered by the Company or its shareholders demanding such
registration) the amount of securities that the underwriters reasonably believe
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such Registrable Securities which
the underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling Holders, if
more than one, according to the total amount of Registrable Securities owned by
each selling Holder or in such other proportions as shall mutually be agreed to
by such selling Holders).
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously and as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to Holder, such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by it.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by Holder,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdiction.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an under-writing agreement, in
usual and customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
1.5 Furnish Information. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Section 1
that the selling Holder or Holders , shall furnish to the Company such
information regarding itself or themselves, the Registrable Securities held by
it or them, and the intended method of disposition of such securities as shall
be required to effect the registration of their Registrable Securities.
1.6 Expenses of Registration. All Registration Expenses
incurred in connection with any registration, filing, qualification or
compliance pursuant to this Section 1 shall be borne by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2 if the registration
request is subsequently withdrawn at the request of Holder or, if more than one,
Holders of a majority of the Registrable Securities to be registered, unless
Holder or, if more than one, Holders of a majority of the Registrable Securities
agree to forfeit their right to one demand registration pursuant to Section 1.2.
Unless otherwise stated, all Selling Expenses relating to securities registered
by Holder or, if more than one, Holders, shall be borne by the holders of such
securities pro rata on the basis of the number of shares so registered.
1.7 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
2. Indemnification. In the event any Registrable Securities are
included in a registration statement under Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers and directors of each
Holder, any underwriter (as defined in the Securities Act) for such Holder and
each person, if any who controls such Holder or underwriter within the meaning
of the Securities Act or Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will reimburse
each such Holder, officer or director, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action,
provided, however, that the indemnity agreement contained in this Section 2(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter
(within the meaning of the Securities Act) for the Company or such other
Holders, any person who controls such underwriter, and any other Holder selling
securities in such registration statement or any of its directors or officers or
any person who controls such Holder, against any losses, claims, damages, or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, or underwriter or controlling person, or other such
Holder or director, officer or controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state law insofar as such
losses, claims damages, or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration, and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or controlling person, other Holder, officer,
director, or controlling person in connection with investigating or defending
any such loss, claim damage, liability, or action, provided, however, that the
indemnity agreement contained in this Section 2(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder.
(c) Promptly after receipt by an indemnified party
under this Section 2 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2, notify the
indemnifying party in writing of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to notify an
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2, but the omission so to notify the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 2.
3. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to Section 1 may be assigned
by a Holder to a transferee or assignee of not less than 500,000 shares of such
Registrable Securities (appropriately adjusted for stock splits, combinations,
recapitalizations and the like), provided that (i) such transfer may otherwise
be effected in accordance with applicable securities laws, (ii) such transferee
or assignee is reasonably acceptable to the Company and (iii) such transfer or
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
4. "Market Stand-off" Agreement. Each Holder hereby agrees that
it shall not, to the extent requested by the Company and an underwriter of
Common Stock (or other securities) of the Company sell or otherwise transfer or
dispose of any Registrable Securities during a minimum of one hundred and eighty
(180) days following the effective date of a registration statement of the
Company filed under the Securities Act which covered Registrable Securities
(irrespective of whether any Registrable Securities were registered in such
registration statement either because the Registrable Securities were cut back
by the underwriter in accordance with Section 1.3(b) hereof, or because the
Holder declined to participate in the registration), or such other longer period
as may be required by the underwriters.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such one hundred and eighty (180) day
period or such other longer period as may be required by the underwriters.
5. Miscellaneous.
5.1 This Agreement constitutes the entire agreement between
the Company and Monsanto with respect to the subject matter hereof. Subject to
the exceptions specifically set forth in this Agreement, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective heirs, successors, administrators, executors and assigns of the
parties hereto.
5.2 Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or five (5)
days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified as
follows: if to the Company, to the Company's Chief Executive Officer at the
Company's principal executive office, and if to Monsanto, at the address
indicated for Monsanto below Monsanto's signature, or at such other address as
such party may designate by ten (10) days' advance written notice to the other
parties.
5.3 This Agreement and the rights and obligations included
herein may hereafter be amended by the written consent of the Company and the
holders of a majority of the shares entitled to the rights being amended.
5.4 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 This Agreement shall be governed in all respects by the
laws of the State of California applicable to contracts entered into and wholly
to be performed within the State of California by California residents.
IN WITNESS WHEREOF, the undersigned or each of their
respective duly authorized officers or representatives have set their hands as
of the date set forth above.
"MONSANTO" "THE COMPANY"
MONSANTO COMPANY FOOD EXTRUSION, INC.
By: /s/Xxxxxxxxxx By: /s/ X.X. XxXxxx
------------------ ------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxxx X. XxXxxx
Title: Executive Vice President Chairman and Chief Executive Officer
Address: Address:
000 X. Xxxxxxxxx Xxxx. 0000 Xxxx'x Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000 Xx Xxxxxx Xxxxx, XX 00000
