Exhibit 3.20
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the ________ day of
________, 199_, by and among Food Extrusion, Inc., a Nevada corporation (the
"Company"), and the shareholders listed on the Schedule of Shareholders attached
hereto as Exhibit A (the "Shareholders").
R E C I T A L S:
A. The Board of Directors of the Company has approved the grant of
registration rights to certain key employee-shareholders of the Company for
purposes of increasing the proprietary interest of such recipients in the
Company's growth and success and to advance the interests of the Company by
retaining officers and other key employees of the Company.
B. The Company wishes to set forth the registration rights and
certain other rights of the Shareholders in this Agreement as the sole agreement
of the Company and the Shareholders with respect thereto.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. AMENDMENT. 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.
2. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
2.1 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 as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect
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to, or in exchange for or in replacement of, such Common Stock, excluding in
all cases, however, any Registrable Securities sold by a person in a
transaction in which his rights under this Section 2 are not assigned;
(d) "HOLDER" shall mean any person who holds outstanding
Registrable Securities which have not been sold to the public, but only if such
person is a Shareholder or an assignee or transferee thereof in accordance with
Section 2.9 hereof;
(e) "REGISTRATION EXPENSES" shall mean all expenses
incurred by the Company in complying with Sections 2.2 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 (but excluding the compensation of regular
employees of the Company which shall be paid in any event by the Company); and
(f) "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.
2.2 COMPANY REGISTRATION. 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 Holders) any of its
stock or other securities under the Securities Act in connection with an
underwritten 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 each Holder written
notice of such registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the Company in
accordance with Section 3.2, the Company shall, subject to the provisions of
Section 2.6, cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered.
2.3 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 2 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
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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 the Holders 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 they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(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 the
Holders, 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.
2.4 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 2
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
2.5 EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, filing, qualification or
compliance pursuant to this Section 2 shall be borne by the Company.
2.6 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares, the Company shall not be required under
Section 2.2 to include any of
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the Holders' Registrable Securities in such underwriting unless they 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 all selling Holders of the
Company 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 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).
2.7 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 2.
2.8 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 2:
(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,
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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 2.8(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 2.9(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, which consent shall
not be unreasonably withheld, and, provided further that in no event shall any
selling Holder's liability hereunder exceed the gross proceeds actually received
by such Holder in respect of the sale of such Holder's shares in such offering.
(c) Promptly after receipt by an indemnified party under
this Section 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified
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party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 2.8, 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 2.8, 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 2.8.
2.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 2 may be
assigned by a Holder to a transferee or assignee of at least 50,000 shares of
such Registrable Securities, provided the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
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.
2.10 "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, or such other longer period as may be
required by the underwriters; provided, however, that:
(a) such agreement shall be applicable only to the first
such registration statement of the Company which covers shares (or securities)
to be sold on its behalf to the public in an underwritten offering; and
(b) all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements.
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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.
3. MISCELLANEOUS.
3.1 This Agreement constitutes the entire agreement between the
Company and the Shareholders with respect to the subject matter hereof. Any
previous agreement between the Company and the Shareholders is superseded by
this Agreement. 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.
3.2 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 President at the Company's principal executive office,
and if to a Shareholder, at the address indicated for such Shareholder on
Exhibit A hereto, or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties.
3.3 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.
3.4 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.
7.
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.
"THE COMPANY" "SHAREHOLDERS"
FOOD EXTRUSION, INC. -----------------------------------
By: -----------------------------------
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Title: -----------------------------------
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