Exhibit 3.17
AMENDMENT NO. 1 TO
STOCK OPTION AGREEMENT
This Amendment No. 1 (the "Amendment") to the Stock Option Agreement
dated April 18, 1997 (the "Option Agreement") is made as of May 29, 1997 by and
among Food Extrusion, Inc., a Nevada corporation (the "Company") and Xxxxx X.
Xxxxx (the "Executive").
RECITALS
A. The Company and the Executive entered into the Option Agreement
pursuant to which the Company granted Executive an option to purchase 2,000,000
shares of the Company's Common Stock at an option price of $2.00 per share.
B. The Company and the Executive desire to amend the Option Agreement
pursuant and subject to the terms and conditions of this Amendment.
In consideration of these premises and of the mutual promises
contained in this Amendment and in the Option Agreement, the parties hereby
agree as follows:
1. Vesting and Exercise of Option.
The introductory paragraph of Section 2 and Section 2(a) are hereby
deleted in its entirety and the following is hereby inserted in lieu thereof:
2. Vesting and Exercise of Option. The Option shall vest and
become exercisable during its term as follows:
(a) The Option shall vest and become exercisable with
respect to one-third of the Shares (or 666,667) subject to the Option
immediately, an additional one-third of the Shares (or 666,667) shall vest and
become exercisable on April 18, 1998; and the remaining one-third of the Shares
(or 666,666) shall vest and become exercisable on April 18, 1999. Subject to the
provisions of subparagraph (b) below, the Executive can exercise any portion of
the Option which has vested until the expiration of the Option term.
Notwithstanding the foregoing, but subject to the provisions of
subparagraph (b) below, at the election of the Executive, the Option can be
exercised in whole or in part at any time as to the Shares which have not
vested, provided that the Executive shall, as a condition of such exercise,
execute and deliver the Restricted Stock Purchase Agreement in the form of
Exhibit A hereto (the "Purchase Agreement"), pursuant to which the Company shall
be granted a Repurchase Option as to all Unvested Shares and a Right of First
Refusal as to all Vested Shares (as such terms are defined in the Purchase
Agreement).
2. Method of Exercise.
Section 7 is hereby deleted in its entirety and the following is hereby
inserted in lieu thereof:
7. In order to exercise the Option, in whole or in part, the
Executive shall give written notice to the Company, specifying the number of
Shares to be purchased and the purchase price to be paid, and accompanied by the
payment of the purchase price. Such purchase price may be paid in cash, a
certified check, or a bank check payable to the Company, or delivery to the
Company of his unconditional Promissory Note Secured by Pledge of Stock in the
form of Exhibit B hereto (the "Promissory Note") in the principal amount of the
purchase price, or in whole shares of Common Stock evidenced by negotiable
certificates, valued at their fair market value on the date of exercise, or in a
combination of the foregoing. Alternatively, the Option may be exercised, in
whole or in part, by delivering a properly executed exercise notice together
with irrevocable instructions to a broker to deliver promptly to the Company the
amount of sale or loan proceeds necessary to pay the purchase price, and such
other documents as the Company may require. Upon receipt of payment, the Company
shall deliver to the Executive (or to any other person entitled to exercise the
Option) a certificate or certificates for such Shares. If certificates
representing shares of Common Stock are used to pay all or part of the purchase
price of the Option, separate certificates shall be delivered by the Company
representing the same number of shares as each certificate so used and an
additional certificate shall be delivered representing the additional shares to
which the Executive is entitled as a result of exercise of the Option.
3. Effect of Amendment. Except as otherwise modified hereby, the terms
of the Subscription Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
FOOD EXTRUSION, INC. XXXXX X. XXXXX
By: /s/ X.XxXxxx By: /s/ Xxxxx Xxxxx
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Title:Chairman Address:3030 Xxxxxxxxxx Xx.
Xxx Xxxxxxxxx, XX 00000
