Exhibit 3.22
STOCK PURCHASE AGREEMENT
THE TRANSACTIONS SET FORTH IN THIS AGREEMENT ARE BEING ENTERED INTO IN
RELIANCE ON CERTAIN EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT") AND APPLICABLE STATE SECURITIES LAWS. THE
PURCHASER OF THE SHARES OF COMMON STOCK SOLD HEREBY MUST BE PREPARED TO BEAR THE
ECONOMIC RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE
SHARES HAVE NOT BEEN REGISTERED UNDER THE 1933 ACT AND, THEREFORE, CANNOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THEY ARE SUBSEQUENTLY
REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THE SHARES HAVE NOT
BEEN QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND CANNOT BE OFFERED,
SOLD, TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS UNLESS AN EXEMPTION FROM QUALIFICATION IS
AVAILABLE. THE SALE OF THESE SHARES HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND IS BEING CONDUCTED PURSUANT TO AN
EXEMPTION FROM SUCH QUALIFICATION REQUIREMENTS.
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of July 16, 1997 by and between Food Extrusion, Inc., a Nevada
corporation (the "Company"), and Xxxxxxx Xxxxxxxxx, an individual residing at
00000 Xxxxxxxx Xx., Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Purchaser").
R E C I T A L S
WHEREAS, the Company desires to issue to Purchaser 40,000 shares of
Restricted Common Stock of the Company (the "Shares") in exchange for consulting
services provided to the Company by the Purchaser on the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties agree as follows:
A G R E E M E N T
1. Issuance of Shares
Subject to the terms and conditions of this Agreement, on the
Closing Date (as defined below), the Company shall issue to the Purchaser the
Shares on the terms set forth herein.
2. Closing
2.1 Closing. Subject to the terms and conditions hereof, on
July 16, 1997 (the "Closing Date"), the Company shall issue to the Purchaser
the Shares.
2.2 Deliveries. On the Closing Date, the Company will deliver
to the Purchaser a certificate or certificates representing the Shares in
satisfaction of payment for prior services rendered by Purchaser to the Company,
and such other documents of transfer as may be necessary or appropriate to
effect the issuance contemplated hereby.
3. Representations and Warranties of the Company
The Company hereby represents and warrants to the Purchaser
that:
3.1 Organization and Standing. The Company is a corporation
duly organized and existing under the laws of the State of Nevada and is in good
standing under such laws. The Company has the requisite corporate power to own
and operate its properties and assets, and to carry on its business as presently
conducted.
3.2 Corporate Power. The Company has all requisite corporate
power to enter into this Agreement, to sell the Shares as provided herein and to
carry out and perform its obligations under the terms of this Agreement.
3.3 Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the purchase of
the Shares pursuant hereto and the performance of the Company's obligations
hereunder has been taken. This Agreement, when executed and delivered by the
Company, shall constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy laws or other similar laws affecting creditors' rights
generally, and except insofar as the availability of equitable remedies may be
limited by applicable law.
4. Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to the Company as
follows:
4.1 Residence. The Purchaser is an individual residing in the
State of California.
4.2 Power to Enter into this Agreement and Purchase the
Shares. The Purchaser has all requisite power and authority to enter into this
Agreement, to purchase the Shares as provided herein and to carry out and
perform his obligations under the terms of this Agreement. Execution of this
Agreement and consummation of the transactions contemplated hereby does not and,
as of the Closing Date, will not, conflict with or result in a default under,
any agreement to which the Purchaser is a party which conflict or default would
result in any third party having any rights whatsoever with respect to
consideration for the Shares to be transferred on the Closing Date.
4.3 Validity. This Agreement, when executed and delivered by
the Purchaser, shall constitute a valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy laws or other similar laws affecting creditors' rights
generally, and except insofar as the availability of equitable remedies may be
limited by applicable law.
4.4 Investment Representations. This Agreement is made with
the Purchaser in reliance on the following specific representations to the
Seller that:
(a) The Shares purchased hereunder will be acquired
for the Purchaser's own account, not as a nominee or agent, and not with a view
to the distribution of any part thereof, and the Purchaser has no present
intention of selling, granting participation in, or otherwise distributing the
same.
(b) The Purchaser has been afforded an opportunity to
ask such questions of the Company's directors, officers, agents, accountants and
representatives concerning the Company's business, operations, financial
condition, assets, liabilities and other relevant matters as Purchaser has
deemed necessary or desirable and have received answers the Purchaser considers
responsive to such questions, and have been given all such information as has
been requested, in order to verify the information supplied and evaluate the
merits and risks of the investment contemplated herein. The Purchaser has
consulted the Purchaser's own financial, tax, accounting and legal advisers, if
any, as to the Purchaser's investment in the Shares and the consequences thereof
and risks associated therewith.
(c) The Purchaser has been solely responsible for the
Purchaser's own "due diligence" investigation of the Company and its management
and business, for Purchaser's own analysis of the merits and risks of this
investment, and for Purchaser's own analysis of the fairness and desirability of
the terms of the investment. In taking any action or performing any role
relative to the arranging of the proposed investment, the Purchaser has acted
solely in the Purchaser's own interest, and the Purchaser has not acted as an
agent of the Company.
(d) The Purchaser has a pre-existing personal or
business relationship with the Company or its officers, directors or controlling
persons and, as a result of such relationship and the Purchaser's prior
experience in financial matters, the Purchaser is able to evaluate the capital
structure and business of the Company (with particular reference to the lack of
cash and other assets) and the risks inherent therein. The Purchaser has
personal or business contacts of a nature and duration such as to enable
Purchaser to be aware of the character, business acumen and general business and
financial circumstances of the Company. The Purchaser has such knowledge and
experience in financial and business matters that the Purchaser is capable of
evaluating the merits and risks of acquiring the Shares and of protecting
Purchaser's interests in connection therewith. The Purchaser is able to bear the
economic risk of the acquisition of the Shares, including a complete loss of the
Purchaser's investment in the Shares. The Purchaser acknowledges that such
investment is highly speculative.
(e) The Purchaser has been advised that the issuance
and transfer of the Shares by the Seller to the Purchaser has not been
registered under the Securities Act of 1933, as amended (the "Act") on the basis
that the transaction is exempt from the registration requirements of the Act
pursuant to Section 4 (2) of the Act and the rules and regulations thereunder;
and that the Shares acquired hereby have not been registered or qualified for
offering under the securities laws of any state in reliance upon exemptions from
registration or qualification available pursuant to applicable state securities
laws, and are restricted securities. The Purchaser has further been advised that
the reliance on such exemptions is predicated, in part, upon the Purchaser's
representation that the Purchaser is acquiring the Shares for the Purchaser's
own account for investment purposes and not with a view to, or for sale in
connection with, any distribution thereof under such circumstances as would
constitute a public offering of unregistered or unqualified securities within
the contemplation of the Act or applicable state securities laws.
(f) The Purchaser has been provided with a copy of
the Company's 15c2-11 Statement which includes the Company's latest audited
financial statement.
(g) The Purchaser confirms that the purchase of
Shares herewith was not accomplished by any means of general solicitation or any
form of public advertisement.
4.5 Rule 144. Purchaser understands that the Shares are
restricted securities within the meaning of Rule 144 under the Securities Act;
that such securities are not registered and must be held indefinitely unless
they are subsequently registered or an exemption from such registration is
available; that, in any event, the exemption from registration under Rule 144
will not be available for at least one year, and even then will not be available
unless: (i) a public trading market then exists for the Shares; (ii) adequate
information concerning the Company is then available to the public; and (iii)
other terms and conditions of Rule 144 are complied with, including, among other
things, the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a "market maker" and the number of
shares being sold in any three-month period shall not exceed specified
limitations; and that any sale of such securities may be made by the Purchaser
only in limited amounts in accordance with such terms and conditions if
Purchaser is an affiliate of the Company or has held such securities less than
two years.
5. Satisfaction. The Purchaser acknowledges receipt of the Shares from
the Company. The Purchaser agrees and acknowledges that the foregoing issuance
of Shares constitutes full performance and satisfaction of the Company's
obligations to the Purchaser for payment for the Purchaser's services provided
to the Company as a consultant and shall fully discharge the Company from any
further obligation.
6. Conditions Precedent
6.1 Conditions Precedent to the Company's Obligations. The
Company shall be obligated to issue the Shares to the Purchaser pursuant to
Section 1 hereof only if the Purchaser has met the following condition
precedent:
(a) The representations and warranties of the
Purchaser shall be true and correct as of the date hereof and as of the Closing
Date.
6.2 Conditions Precedent to Purchaser's Obligations. The
Purchaser shall be obligated to receive the Shares from the Company pursuant to
Section 1 hereof only if the Company has met the following conditions precedent:
(a) The representations and warranties of the Company
shall be true and correct as of the date hereof and as of the Closing Date.
(b) The Company shall have tendered to the Purchaser
the Shares.
7. Term and Termination
7.1 Term. This Agreement shall continue in full force and
effect until the Shares are issued to the Purchaser hereunder or until earlier
terminated as provided in Section 6.2 hereof.
7.2. Termination. This Agreement may be terminated as follows:
(a) By the Company upon notice to the Purchaser if:
(i) any representation or warranty of the
Purchaser shall have been untrue or incorrect in any material respect;
(ii) any condition precedent of the
Company's obligations has not been satisfied as of the Closing Date or
(b) By the Purchaser upon notice to the Company if:
(i) any representation or warranty of the
Company shall have been untrue or incorrect in any material respect; or
(ii) any condition precedent of the
Purchaser's obligations has not been satisfied as of the Closing Date.
(c) Failure by either party to provide notice of
termination shall not be deemed a waiver of the right to terminate nor shall it
be construed as a waiver of any future rights to terminate this Agreement.
8. Legends.
8.1 Securities Act Legend. Each certificate representing the
Shares issued shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS (THE "LAWS") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT OR
QUALIFICATION UNDER THE LAWS UNLESS THE COMPANY AND ITS COUNSEL ARE
SATISFIED THAT SUCH REGISTRATION AND QUALIFICATION IS NOT THEN REQUIRED
UNDER THE CIRCUMSTANCES OF SUCH OFFER, SALE, TRANSFER, PLEDGE OR
HYPOTHECATION.
8.2 State Securities Laws Legends. Any certificate
representing the Shares shall also be endorsed with any legend or legends
required by the securities laws of the jurisdiction of the residence of the
Purchaser.
9. Miscellaneous.
9.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California without application of
principles of conflicts of laws.
9.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
9.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto. This agreement may be assigned in whole or in part by the
Company in connection with the transfer of any Shares by the Company to any
third party, provided, however, that any such third party shall agree to assume
each of the obligations of the Company under this Agreement. This Agreement may
not be assigned by the Purchaser without the prior written consent of the
Company.
9.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof. Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the parties.
9.5 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be (i) delivered
personally, (ii) transmitted by first-class mail, postage prepaid, or airmail,
postage prepaid, in the event of mailing for delivery outside of the country in
which mailed, (iii) transmitted by an overnight courier of recognized reputation
or of recognized international reputation in the event of an international
delivery, or (iv) transmitted by telecopier (with confirmation by airmail or
courier), addressed (a) if to the Purchaser, his address as set forth in the
first paragraph of this Agreement or (b) if to the Company, at his address set
forth in the first paragraph of this Agreement. Except as otherwise specified
herein, all notices and other communications shall be deemed to have been duly
given on (A) the date of receipt if delivered personally, (B) the date seven (7)
days after posting if transmitted by mail, (C) the date three (3) days after
delivery to the courier if sent by recognized or internationally recognized
courier service, or (D) the date on which written confirmation would be deemed
to have been given as provided above, whether by mail or by courier, as
applicable, if transmitted by telecopier, whichever shall first occur.
9.6 Separability of this Agreement. In case any provision of
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
9.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
9.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the day and year first written above.
FOOD EXTRUSION, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
