Exhibit 3.18
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 18, 1997 (this
"Agreement"), by and between FOOD EXTRUSION, INC., a Nevada corporation (the
"Company"), and XXXXX X. XXXXX (the "Shareholder").
WHEREAS, the Company is concurrently entering into an Employment
Agreement with Shareholder that, among other things, requires the Company to
grant to Shareholder the option to purchase shares of Company common stock (the
"Shares").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the parties hereby agree as follows:
1. Piggyback Registration Rights.
(a) The Company agrees with Shareholder that if the Company
proposes at any time to file with the Securities and Exchange Commission (the
"SEC") a registration statement under the Securities Act of 1933, as amended
(the "1933 Act") on Form S-1 or other comparable form relating to the sale of
common stock by the Company (other than through the distribution of rights to
purchase common stock to its stockholders generally) (a "Company Registration
Statement"), then the Company shall give notice to Shareholder at least sixty
(60) days prior to the filing of such Company Registration Statement of its
intention to do so; provided however, that the Company shall not be required to
give notice or include such Shares in any such registration if the proposed
registration relates solely to (i) securities proposed to be issued in exchange
for securities or assets of, or in connection with a merger or consolidation
with, another corporation, (ii) securities to be offered by the Company
generally to any class or series of its then existing security holders, (iii)
securities issuable upon conversion of securities which are the subject of an
underwritten redemption or (iv) securities to be offered or issued pursuant to a
combination of transactions referred to in clauses (i) through (iii).
(b) If Shareholder delivers a written notice to the Company,
within 15 days after delivery of the foregoing notice, of his desire to have any
of the Shares included in a Company Registration Statement, such Shares shall be
included in any Company Registration Statement so filed, subject to the other
provisions of this Agreement.
(c) The Company shall have no obligation to effect
registration if all of Shareholder's Shares requested to be registered shall be
in the written opinion of counsel to the Company, addressed to Shareholder,
eligible to be sold to the public without registration under the 1933 Act and
without restriction as to subsequent trading.
(d) If an underwriter with respect to a Company Registration
Statement (the "Underwriter") advises the Company that the number of shares
proposed to be sold by the Company and Shareholder is greater than the number of
Shares of common stock which the Underwriter believes feasible to sell at that
time, at the price and upon the terms approved by the Company, then the number
of Shares of common stock which the Underwriter in its sole discretion believes
may be sold shall first be allocated to the Company and the remaining number of
such Shares of common stock shall then be allocated on a pro rata basis to all
other holders of common stock being registered, including Shareholder. In the
event Shareholder is unable to sell such of his Shares as he desires to sell in
a Company Registration Statement due to restrictions or advice to the Company
from the Underwriter, such Shareholder will not be deemed to have exercised his
right to have Shares included in a Company Registration Statement to the extent
his Shares are excluded.
(e) At the request of the Underwriter, and as a condition to
inclusion in the Company Registration Statement of any Shares owned by
Shareholder, Shareholder shall agree in writing not to offer or sell any Shares
not sold pursuant to a Company Registration Statement filed pursuant to this
Agreement for a period specified by the Underwriter, provided that such period
shall not exceed 180 days from the effective date of such Company Registration
Statement and that every other selling shareholder subject to a provision
identical or substantially similar to this paragraph (e) is similarly
restricted.
(f) Notwithstanding the inclusion of any Shares owned by
Shareholder in any Company Registration Statement filed pursuant to this
Agreement, the Company shall have no obligation to cause or permit such Company
Registration Statement to become effective under the 1933 Act at any time, and
in its sole discretion may withdraw such Company Registration Statement at any
time prior to the effectiveness thereof for any reason whatsoever. The Company
agrees in the event of any such withdrawal of any Company Registration Statement
to give prompt notice of such withdrawal to Shareholder. In the event of such
withdrawal Shareholder will not be deemed to have exercised his right to have
Shares included in a Company Registration Statement so withdrawn.
(g) The Company shall be obligated to cause any effective
prospectus included in the Company Registration Statement to meet the
requirements of Section 10 of the 1933 Act for a period of ninety (90) days from
the date on which Shareholder was first able to sell Shares pursuant to such
Company Registration Statement provided, however, that if, as a result of
interruptions in the offer and sale of Shares covered thereby, the aggregate
period for which Shareholder was able to offer and sell his Shares pursuant to
such Company Registration Statement would be reduced to less than 90 days, the
Company shall take such action as may be necessary to enable Shareholder to
continue such offer and sale for an additional period or periods sufficient to
produce an aggregate offering period of 90 days.
2. Selling Expenses.
(a) Except as otherwise set forth in (b) below or as required
by the SEC or any other federal or state regulatory authority, the costs and
expenses incurred in connection with the inclusion of Shareholder' Shares in a
registration statement shall be borne by the Company with respect to any Company
Registration Statement filed under this Agreement which includes Shares of
Shareholder, including, without limitation, all costs and expenses arising from
or related to the preparation and filing of such registration statements, the
prosecution of such filings to effectiveness and the maintenance of such
registration statements in effect for the period determined pursuant to this
Agreement.
(b) Notwithstanding anything to the contrary set forth in
subsection (a), Shareholder shall bear the following costs and expenses incurred
in connection with all registration statements filed pursuant to this Agreement
in which Shares owned by him are included:
i) The fees and disbursements of any separate
counsel retained by Shareholder in excess of $5000 [/s/AS] ;
ii) Any underwriting discounts, commissions and
expenses relating to Shares sold by Shareholder; and
iii) Any taxes payable with respect to the transfer
by Shareholder.
(c) Notwithstanding anything to the contrary set forth herein,
the Company shall have no obligation to bear such fees in connection with the
inclusion of Shares in a Company Registration Statement in any states where the
Company was not otherwise intending to register or file with respect to shares
covered by the Company Registration Statement.
3. Reports Under Securities Exchange Act of 1934. In the event the
Company registers any class or series of its capital stock with the SEC, then
with a view to making available to Shareholder the benefits of Rule 144
promulgated under the 1933 Act and any other rule or regulation of the SEC that
may at any time permit Shareholder to sell securities of the Company to the
public without registration, the Company agrees to use reasonable efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Securities Exchange Act
of 1934, as amended (the "1934 Act"); and
(c) furnish to Shareholder, so long as Shareholder owns any
Shares, forthwith upon request, whenever applicable (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule
144, the 1933 Act, and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing Shareholder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
4. Indemnification. In the event any of the Shares are included in any
registration statement:
(a) the Company shall indemnify and hold harmless Shareholder
or any underwriter (within the meaning of the 0000 Xxx) for the Company or
Shareholder, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the 1933 Act, or the 0000 Xxx,
xxxxx securities laws, other federal or state law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) (i) arise out of or are based upon any untrue or alleged
untrue statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto or any documents prepared or furnished by
the Company incident thereto, or (ii) arise out of or are based upon 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) arise out of or are based upon any violation by the Company of any rule or
regulation promulgated under the 1933 Act, the 1934 Act, or other federal or
state law applicable to the Company and relating to any action or inaction
required of the Company in connection with such registration. The Company shall
reimburse Shareholder or such underwriter for any reasonable and actual legal or
other expenses, as incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. Notwithstanding the
foregoing, the Company shall not be liable in any such case for any loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary prospectus,
final prospectus or amendments or supplements thereto or documents prepared or
furnished by the Company incident thereto in reliance upon and in conformity
with information furnished expressly for use in connection with such
registration by Shareholder or such underwriter.
(b) promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
unless such liability is the proximate result of such failure. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to appoint counsel reasonably satisfactory to such indemnified party to
represent the indemnified party in such action; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
based on the written opinion of counsel addressed to the indemnifying party that
there may be a conflict of interest between it and/or other indemnified parties,
on the one hand, and the indemnifying party, on the other, the indemnified party
or parties shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable to such indemnified party
under this section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, or (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 4 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and Shareholder shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and
Shareholder may be subject in such proportions as is appropriate to reflect the
relative fault of the indemnifying party on the one hand of the indemnified
party on the other in connection with the statements or omissions which resulted
in such loss, liability, claim, damage or expense as well as any other equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement of omission. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (c), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (c).
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the date first above written.
FOOD EXTRUSION, INC., a Nevada corporation
By: /s/Xxxxxxxx Xxxxxx By:/s/ X.XxXxxx
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Name: Xxxxxxxx Xxxxxx Name: X.X. XxXxxx
Title: President Title: COB
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
