UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): October 15,
2009
LANDEC
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
(State or
other jurisdiction of incorporation or organization)
|
0-27446
(Commission file number)
|
94-3025618
(IRS Employer Identification No.)
|
3603
Haven Avenue, Menlo Park, California 94025
(Address
of principal executive offices and zip code)
(650) 306-1650
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed from last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into
a Material Definitive Agreement.
On
October 15, 2009, following stockholder approval at the Annual Meeting of
Stockholders of Landec Corporation (the “Company”), the 2009 Stock Incentive
Plan (the “Plan”) became effective and no further awards will be made under the
Company’s 2005 Stock Incentive Plan or any other Company equity award
plan. Employees (including officers), consultants and directors of
the Company and its subsidiaries and affiliates are eligible to participate in
the Plan.
The
Plan provides for the grant of stock options (both nonstatutory and incentive
stock options), stock grants, stock units and stock appreciation rights. Awards
under the Plan will be evidenced by an agreement with the Plan
participant. One million nine hundred thousand (1,900,000) shares of
the Company’s common stock (“Shares”) are available for awards under the Plan.
Under the Plan no recipient may be awarded any of the following during any
fiscal year: (i) stock options covering in excess of 500,000 Shares;
(ii) stock grants and stock units covering in excess of 250,000 Shares in
the aggregate; or (iii) stock appreciation rights covering more than 500,000
Shares. In addition, awards to non-employee directors are discretionary.
However, a non-employee director may not be granted awards covering in excess of
30,000 Shares in the aggregate during any fiscal year.
The
Company’s Compensation Committee will administer the Plan with respect to
persons who are subject to Section 16 of the Securities Exchange Act of
1934 and awards intended to qualify as performance-based compensation” under
Section 162(m) of the Internal Revenue Code of 1986, as amended. The
Compensation Committee or a subcommittee thereof will administer the Plan with
respect to all other awards.
The
Board of Directors may amend the Plan at any time and for any reason, provided
that any such amendment will be subject to stockholder approval to the extent
required by applicable laws, regulations or rules. The Board of Directors may
terminate the Plan at any time and for any reason. The term of the Plan is seven
years from the date of stockholder approval. The Plan is currently set to
terminate on the date of the 2016 annual meeting of
stockholders unless re-adopted or extended by the stockholders prior
to or on such date.
The
foregoing description of the Plan is only a summary and is qualified in its
entirety by reference to the Plan, which is filed as an exhibit
hereto.
Item 9.01 Financial Statements
and Exhibits
(d) Exhibits
|
Exhibit
|
Description
|
|
|
99.1
|
2009
Stock Incentive Plan
|
|
|
99.2
|
2009
Stock Incentive Plan-Form of Stock Grant Agreement
|
|
|
99.3
|
2009
Stock Incentive Plan-Form of Notice of Stock Option Grant and Stock Option
Agreement
|
|
|
99.4
|
2009
Stock Incentive Plan-Form of Stock Unit Agreement
|
|
|
99.5
|
2009
Stock Incentive Plan-Form of Notice of Grant of Stock Appreciation Right
and Stock Appreciation Right
Agreement
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
|
LANDEC
CORPORATION
Registrant
|
||||
|
Date:
October 19, 2009
|
By:
|
/s/
Gregory S. Skinner
|
||
|
Gregory
S. Skinner
|
||||
|
Vice
President of Finance and
|
||||
|
Chief
Financial
Officer
|
||||
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
99.1
|
2009
Stock Incentive Plan
|
|
|
99.2
|
2009
Stock Incentive Plan-Form of Stock Grant Agreement
|
|
|
99.3
|
2009
Stock Incentive Plan-Form of Notice of Stock Option Grant and Stock Option
Agreement
|
|
|
99.4
|
2009
Stock Incentive Plan-Form of Stock Unit Agreement
|
|
|
99.5
|
2009
Stock Incentive Plan-Form of Notice of Grant of Stock Appreciation Right
and Stock Appreciation Right
Agreement
|
Exhibit
99.1
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
SECTION 1. INTRODUCTION.
1 The
Landec Corporation 2009 Stock Incentive Plan will be effective (the
“Effective Date) upon its approval by an affirmative vote of the holders of a
majority of the Shares that are present in person or by proxy and entitled to
vote at the 2009 Annual Meeting of Stockholders of the Company. The Plan shall
supersede the Existing Equity Plan effective as of the Effective Date such that
no further awards shall be made under the Existing Equity Plan on or after such
date. However, this Plan shall not, in any way, affect awards
that are outstanding as of the Effective Date under the Existing Equity Plan or
any other equity award plan of the Company. If the Company’s
stockholders do not approve this Plan, no Awards will be made under this Plan
and the Existing Equity Plan will continue in effect in accordance with its
terms.
2 The
purpose of the Plan is to promote the long-term success of the Company and the
creation of Stockholder value by offering Key Service Providers an opportunity
to share in such long-term success by acquiring a proprietary interest in the
Company.
3 The
Plan seeks to achieve this purpose by providing for discretionary long-term
incentive Awards in the form of Options (which may constitute Incentive Stock
Options or Nonstatutory Stock Options), Stock Appreciation Rights, Stock Grants
and Stock Units.
4 The
Plan shall be governed by, and construed in accordance with, the laws of the
State of Delaware (except its choice-of-law provisions), and with the applicable
requirements of the stock exchanges or other trading systems on which the Stock
is listed or entered for trading, in each case as determined by the Committee.
Capitalized terms shall have the meaning provided in Section 2 unless
otherwise provided in this Plan or any related Stock Option Agreement, SAR
Agreement, Stock Grant Agreement or Stock Unit Agreement.
SECTION 2. DEFINITIONS.
(a)
“Affiliate” means any entity other than a Subsidiary if the Company and/or one
or more Subsidiaries have a controlling interest in such entity. For purposes of
the preceding sentence, except as the Committee may otherwise determine subject
to the requirements of Treas. Reg. §1.409A-1(b)(5)(iii)(E)(1), the term
“controlling interest” has the same meaning as provided in Treas. Reg.
§1.414(c)-2(b)(2)(i), provided that the words “at least 50 percent” are used
instead of the words “at least 80 percent” each place such words appear in
Treas. Reg. §1.414(c)-2(b)(2)(i). The Company may at any time by amendment
provide that different ownership thresholds (consistent with Section 409A of the
Code) apply but any such change shall not be effective for twelve (12) months.
In addition, any Affiliate must also meet the requirements of subsection (c)
under Rule 701 of the Securities Act.
(b)
“Award” means any award of an Option, SAR, Stock Grant or Stock Unit under the
Plan.
(c)
“Board” means the Board of Directors of the Company, as constituted from time to
time.
Exhibit
99.1
(d)
“Cashless Exercise” means, to the extent that a Stock Option Agreement so
provides and as permitted by applicable law, (i) a program approved by the
Committee in which payment may be made all or in part by delivery (on a form
prescribed by the Committee) of an irrevocable direction to a securities broker
to sell Shares and to deliver all or part of the sale proceeds to the Company in
payment of the aggregate Exercise Price and any applicable tax withholding
obligations relating to the Option or (ii) the withholding of that number of
Shares otherwise deliverable upon exercise of the Option whose aggregate Fair
Market Value is equal to the aggregate exercise price of the
Option.
(e) “Cause”
means, except as may otherwise be provided in a Participant’s employment
agreement or Award agreement, any of the following events: (i) Participant’s
willful failure substantially to perform his or her duties and responsibilities
to the Company or deliberate violation of a Company policy; (ii) Participant’s
commission of any act of fraud, embezzlement, dishonesty or any other willful
misconduct that has caused or is reasonably expected to result in material
injury to the Company; (iii) unauthorized use or disclosure by Participant of
any proprietary information or trade secrets of the Company or any other party
to whom the Participant owes an obligation of nondisclosure as a result of his
or her relationship with the Company; or (iv) Participant’s willful breach of
any of his or her obligations under any written agreement or covenant with the
Company. The determination as to whether a Participant is being terminated for
Cause shall be made in good faith by the Committee and shall be conclusive and
binding on the Participant. The foregoing definition does not in any way limit
the Company’s ability to terminate a Participant’s Service at any time as
provided in Section 12(a), and the term “Company” will be interpreted to
include any Subsidiary, Parent, Affiliate, or any successor thereto, if
appropriate.
(f)
“Change In Control” except as may otherwise be provided in a Participant’s
employment agreement or Award agreement, means the occurrence of any of the
following: (i) the consummation of a merger or consolidation of the Company with
or into another entity or any other corporate reorganization if more than 50% of
the combined voting power of the continuing or surviving entity’s securities
outstanding immediately after such transaction is owned by persons who were not
stockholders of the Company immediately prior to such transaction; (ii) the
sale, transfer or other disposition of all or substantially all of the Company’s
assets; (iii) the direct or indirect sale or exchange in a single transaction or
series of related transactions by the stockholders of the Company of more than
50% of the voting stock of the Company to an unrelated person or entity if more
than 50% of the combined voting power of the surviving entity’s securities
outstanding immediately after such transaction is owned by persons who were not
stockholders of the Company immediately prior to such transaction; or (iv) a
complete liquidation or dissolution of the Company.
A
transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company’s incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company’s securities immediately before such transactions.
(g)
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations
and interpretations promulgated thereunder.
Exhibit
99.1
(h)
“Committee” means the Compensation Committee of the Board or a subcommittee
thereof or such other committee as may be designated by the Board to administer
the Plan.
(i)
“Common Stock” means the common stock, of the Company.
(j)
“Company” means Landec Corporation, a Delaware corporation.
(k)
“Consultant” means an individual who provides bona fide services to the Company,
a Parent, a Subsidiary or an Affiliate, other than as an Employee or Director or
Non-Employee Director.
(l)
“Covered Employees” means those persons who are subject to the limitations of
Section 162(m) of the Code.
(m)
“Director” means a member of the Board who is also an Employee.
(n)
“Disability” means that the Participant is classified as disabled under a
long-term disability policy of the Company or, if no such policy applies, the
Participant is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
(o)
“Employee” means any individual who is a common law employee of the Company, a
Parent, a Subsidiary or an Affiliate.
(p)
“Exchange Act” means the Securities Exchange Act of 1934, as
amended. Reference to a specific section of the Exchange Act or
regulation thereunder shall include such section or regulation, any valid
regulation promulgated under such section, and any comparable provision of any
future legislation or regulation amending, supplementing or superseding such
section or regulation.
(q)
“Exercise Price” means, in the case of an Option, the amount for which a Share
may be purchased upon exercise of such Option, as specified in the applicable
Stock Option Agreement. “Exercise Price,” in the case of a SAR, means an amount,
as specified in the applicable SAR Agreement, which is subtracted from the Fair
Market Value in determining the amount payable upon exercise of such
SAR.
(r)
“Existing Equity Plan” means the Company’s 2005 Stock Incentive
Plan.
(s) “Fair
Market Value” means the market price of a Share as determined in good faith by
the Committee. Such determination shall be conclusive and binding on all
persons. The Fair Market Value shall be determined by the following: (i) if the
Shares are admitted to trading on any established national stock exchange or
market system, including without limitation the NASDAQ Global Market System, on
the date in question, then the Fair Market Value shall be equal to the closing
sales price for such Shares as quoted on such national exchange or system on
such date; or (ii) if the Shares are admitted to quotation on NASDAQ or are
regularly quoted by a recognized securities dealer but selling prices are not
reported on the date in question, then the Fair Market Value shall be equal to
the mean between the bid and asked prices of the Shares reported for such
date.
Exhibit
99.1
In each
case, the applicable price shall be the price reported in The Wall Street
Journal or such other source as the Committee deems reliable; provided, however,
that if there is no such reported price for the Shares for the date in question,
then the Fair Market Value shall be equal to the price reported on the last
preceding date for which such price exists. If neither (i) or (ii) are
applicable, then the Fair Market Value shall be determined by the Committee in
good faith on such basis as it deems appropriate, consistent with the
requirements of Section 409A or Section 422 of the Code, to the extent
applicable.
(t)
“Fiscal Year” means the Company’s fiscal year.
(u)
“Grant” means any grant of an Award under the Plan.
(v)
“Incentive Stock Option” or “ISO” means an incentive stock option described in
Section 422 of the Code.
(w) “Key
Service Provider” means an Employee, Director, Non-Employee Director or
Consultant who has been selected by the Committee to receive an Award under the
Plan.
(x)
“Non-Employee Director” means a member of the Board who is not an
Employee.
(y)
“Nonstatutory Stock Option” or “NSO” means a stock option that is not an
ISO.
(z)
“Option” means an ISO or NSO granted under the Plan entitling the Optionee to
purchase Shares.
(aa)
“Optionee” means an individual, estate or other entity that holds an
Option.
(bb)
“Parent” means any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, if each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain. A
corporation that attains the status of a Parent on a date after the adoption of
the Plan shall be considered a Parent commencing as of such date.
(cc)
“Participant” means an individual or estate or other entity that holds an Award
under the Plan.
(dd)
“Performance Goals” means one or more objective measurable performance factors
as determined by the Committee with respect to each Performance Period based
upon one or more factors, including, but not limited to: (i) operating
income; (ii) earnings before interest, taxes, depreciation and amortization
(“EBITDA”); (iii) earnings; (iv) cash flow; (v) market share;
(vi) sales or revenue; (vii) expenses; (viii) cost of goods sold;
(ix) profit/loss or profit margin; (x) working capital; (xi) return on
equity or assets; (xii) earnings per share; (xiii) economic value added
(“EVA”); (xiv) price/earnings ratio; (xv) debt or debt-to-equity;
(xvi) accounts receivable; (xvii) writeoffs; (xviii) cash; (xix)
assets; (xx) liquidity; (xxi) operations; (xxii) intellectual
property (e.g., patents); (xxiii) product development;
(xxiv) regulatory activity; (xxv) manufacturing, production or
inventory; (xxvi) mergers and acquisitions or divestitures; and/or
(xxvii) financings, each with respect to the Company and/or one or more of
its Parent, Subsidiaries, Affiliates or operating units. Awards issued to
persons who are not Covered Employees may take into account other factors. To
the extent consistent with the requirements for satisfying the performance-based
compensation exception under Section 162(m) of the Code, the Committee may
provide in the case of any Award intended to qualify for such exception that one
or more of the Performance Goals applicable to such Award will be adjusted in an
objectively determinable manner to reflect events (for example, but without
limitation, acquisitions or dispositions) occurring during the Performance
Period that affect the applicable Performance Goals.
Exhibit
99.1
(ee)
“Performance Period” means any period not exceeding 36 months as determined
by the Committee, in its sole discretion. The Committee may establish different
Performance Periods for different Participants, and the Committee may establish
concurrent or overlapping Performance Periods.
(ff)
“Plan” means this Landec Corporation 2009 Stock Incentive Plan as it may be
amended from time to time.
(gg)
“Re-Price” means that the Company has lowered or reduced the Exercise Price of
outstanding Options and/or outstanding SARs for any Participant(s) in a manner
described by Item 402(i)(1) of SEC Regulation S-K (or its successor
provision).
(hh) “SAR
Agreement” means the agreement described in Section 7 evidencing each Award
of a Stock Appreciation Right.
(ii)
“SEC” means the Securities and Exchange Commission.
(jj)
“Section 16 Persons” means those officers, directors or other persons who
are subject to Section 16 of the Exchange Act.
(kk)
“Securities Act” means the Securities Act of 1933, as
amended. Reference to a specific section of the Securities Act or
regulation thereunder shall include such section or regulation, any valid
regulation promulgated under such section, and any comparable provision of any
future legislation or regulation amending, supplementing or superseding such
section or regulation.
(ll)
“Service” means service as an Employee, Director, Non-Employee Director or
Consultant. A Participant’s Service does not terminate if he or she is an
Employee and goes on a bona fide leave of absence that was approved by the
Company in writing and the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
However, for purposes of determining whether an Option is entitled to continuing
ISO status, an Employee’s Service will be treated as terminating 90 days after
such Employee went on leave, unless such Employee’s right to return to active
work is guaranteed by law or by a contract. Service terminates in any event when
the approved leave ends, unless such Employee immediately returns to active
work. The Committee determines which leaves count toward Service, and when
Service terminates for all purposes under the Plan. Further, unless otherwise
determined by the Committee, a Participant’s Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Participant
provides service to the Company, a Parent, Subsidiary or Affiliate, or a
transfer between entities (the Company or any Parent, Subsidiary, or Affiliate);
provided that there is no interruption or other termination of
Service.
Exhibit
99.1
(mm)
“Share” means one share of Common Stock.
(nn)
“Stock Appreciation Right” or “SAR” means a stock appreciation right awarded
under the Plan.
(oo)
“Stock Grant” means Shares awarded pursuant to Section 8 of the
Plan.
(pp)
“Stock Grant Agreement” means the agreement described in Section 8
evidencing each Award of a Stock Grant.
(qq)
“Stock Option Agreement” means the agreement described in Section 6
evidencing each Award of an Option.
(rr)
“Stock Unit” means a bookkeeping entry representing the equivalent of one Share,
as awarded pursuant to Section 9 of the Plan.
(ss)
“Stock Unit Agreement” means the agreement described in Section 9
evidencing each Award of a Stock Unit.
(tt)
“Subsidiary” means any corporation (other than the Company) or other entity in a
chain of corporations or other entities in which each corporation or other
entity has a controlling interest in another corporation or other entity in the
chain, beginning with the Company and ending with such corporation or other
entity. For purposes of the preceding sentence, except as the Committee may
otherwise determine subject to the requirements of Treas. Reg.
§1.409A-1(b)(5)(iii)(E)(1), the term “controlling interest” has the same meaning
as provided in Treas. Reg. §1.414(c)-2(b)(2)(i), provided that the words “at
least 50 percent” are used instead of the words “at least 80 percent” each place
such words appear in Treas. Reg. §1.414(c)-2(b)(2)(i). The Company may at any
time by amendment provide that different ownership thresholds (consistent with
Section 409A of the Code) apply but any such change shall not be effective for
twelve (12) months. In addition, any Subsidiary must also meet the requirements
of subsection (c) under Rule 701 of the Securities Act. A corporation or other
entity that attains the status of a Subsidiary on a date after the adoption of
the Plan shall be considered a Subsidiary commencing as of such
date.
(uu)
“10-Percent Stockholder” means an individual who owns more than 10% of the total
combined voting power of all classes of outstanding stock of the Company, its
Parent or any of its Subsidiaries. In determining stock ownership, the
attribution rules of Section 424(d) of the Code shall be applied.
SECTION 3. ADMINISTRATION.
(a) The
Committee. The Committee shall administer the Plan.
(b)
Delegation by the Committee. The Committee, on such terms and
conditions as it may provide, may delegate all or any part of its authority and
powers under the Plan to one or more Directors or officers of the Company.
Notwithstanding the foregoing, with respect to Awards that are intended to
qualify as performance-based compensation under Section 162(m) of the Code, the
Committee may not delegate its authority and powers with respect to such Awards
if such delegation would cause the Awards to fail to so qualify. The Committee
may delegate its authority and power under the Plan to one or more officers of
the Company, subject to guidelines prescribed by the Committee, but only with
respect to Participants who are not Section 16 Persons.
Exhibit
99.1
(c)
Authority of the Committee. Subject to the provisions of the Plan, the Committee
shall have full authority and sole discretion to take any actions it deems
necessary or advisable for the administration of the Plan. Such actions shall
include, without limitation: (i) selecting Key Service Providers who are to
receive Awards under the Plan; (ii) determining the type, number, vesting
requirements and other features and conditions of such Awards and amending such
Awards; (iii) correcting any defect, supplying any omission, or reconciling any
inconsistency in the Plan or any Award agreement; (iv) accelerating the vesting,
or extending the post-termination exercise term, of Awards at any time and under
such terms and conditions as it deems appropriate; (v) interpreting the Plan;
(vi) making all other decisions relating to the operation of the Plan; and (vii)
adopting such plans or subplans as may be deemed necessary or appropriate to
provide for the participation by employees of the Company and its Subsidiaries
and Affiliates who reside outside the U.S., which plans and/or subplans shall be
attached hereto as Appendices.
The
Committee may adopt such rules or guidelines as it deems appropriate to
implement the Plan. In the case of any Award intended to be eligible for the
performance-based compensation exception under Section 162(m) of the Code, the
Committee will exercise its discretion consistent with qualifying the Award from
that exception. The Committee’s determinations under the Plan shall be final and
binding on all persons.
(d)
Indemnification. To the maximum extent permitted by applicable law, each member
of the Committee, or of the Board, shall be indemnified and held harmless by the
Company against and from (i) any loss, cost, liability, or expense that may
be imposed upon or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit, or proceeding to which he or she may be
a party or in which he or she may be involved by reason of any action taken or
failure to act under the Plan or any Award agreement, and (ii) from any and
all amounts paid by him or her in settlement thereof, with the Company’s
approval, or paid by him or her in satisfaction of any judgment in any such
claim, action, suit, or proceeding against him or her, provided he or she shall
give the Company an opportunity, at its own expense, to handle and defend the
same before he or she undertakes to handle and defend it on his or her own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
Company’s Certificate of Incorporation or Bylaws, by contract, as a matter of
law, or otherwise, or under any power that the Company may have to indemnify
them or hold them harmless.
SECTION 4. GENERAL.
(a)
General Eligibility. Only Employees, Directors, Non-Employee Directors and
Consultants shall be eligible to participate in the Plan. Eligibility shall be
further limited, subject to such express exceptions, if any, as the Committee
may establish, to those persons as to whom the use of a Form S-8 registration
statement is permissible.
Exhibit
99.1
(b)
Incentive Stock Options. Only Key Service Providers who are Employees of the
Company, a Parent or a Subsidiary shall be eligible for the grant of ISOs. In
addition, a Key Service Provider who is a 10-Percent Stockholder shall not be
eligible for the grant of an ISO unless the requirements set forth in
Section 422(c)(5) of the Code are satisfied.
(c)
Restrictions on Shares. Any Shares issued pursuant to an Award shall be subject
to such rights of repurchase, rights of first refusal and other transfer
restrictions as the Committee may determine, in its sole discretion. Such
restrictions shall apply in addition to any restrictions that may apply to
holders of Shares generally and shall also comply to the extent necessary with
applicable law. In no event shall the Company be required to issue fractional
Shares under this Plan.
(d)
Beneficiaries. Unless stated otherwise in an Award agreement, a Participant may
designate one or more beneficiaries to whom any vested Award shall be paid or
issued in the event of the Participant’s death by timely filing the prescribed
form with the Company. A beneficiary designation may be changed by filing the
prescribed form with the Company at any time before the Participant’s
death. Each such designation shall revoke all prior
designations by the Participant and shall be effective only if given in a form
and manner acceptable to the Committee. If no beneficiary was designated or if
no designated beneficiary survives the Participant, then after a Participant’s
death any vested Award(s) shall be transferred or distributed to the
Participant’s estate.
(e)
Performance Conditions. The Committee may, in its discretion, include
performance conditions in an Award. If performance conditions are included in
Awards to Covered Employees, then such Awards will be subject to the achievement
of Performance Goals established by the Committee. Such Performance Goals shall
be established and administered pursuant to the requirements of
Section 162(m) of the Code. Before any Shares underlying an Award or any
Award payments are released to a Covered Employee with respect to a Performance
Period, the Committee shall certify in writing that the Performance Goals for
such Performance Period have been satisfied. Awards with performance conditions
that are granted to Key Service Providers who are not Covered Employees need not
comply with the requirements of Section 162(m) of the Code.
(f) No
Rights as a Stockholder. Except as set forth in Section 8(f), a Participant, or
a transferee of a Participant, shall have no rights as a Stockholder with
respect to any Common Stock covered by an Award until such person has satisfied
all of the terms and conditions to receive such Common Stock, has satisfied any
applicable withholding or tax obligations relating to the Award and the Shares
have been issued (as evidenced by an appropriate entry on the books of the
Company or a duly authorized transfer agent of the Company).
Exhibit
99.1
(g)
Termination of Service. Unless the applicable Award agreement or, with respect
to Participants who reside in the U.S., the applicable employment agreement
provides otherwise, the following rules shall govern the vesting, exercisability
and term of outstanding Awards held by a Participant in the event of termination
of such Participant’s Service (in all cases subject to the term of the Option
and/or SAR as applicable): (i) upon termination of Service for any reason,
all unvested portions of any outstanding Awards shall be immediately forfeited
without consideration and the vested portions of any outstanding Stock Units
shall be settled upon termination; (ii) if the Service of a Participant is
terminated for Cause, then all unexercised Options and/or SARs, unvested
portions of Stock Units and unvested portions of Stock Grants shall terminate
and be forfeited immediately without consideration; (iii) if the Service of
Participant is terminated for any reason other than for Cause, death, or
Disability, then the vested portion of his or her then-outstanding Options
and/or SARs may be exercised by such Participant or his or her personal
representative within six months after the date of such termination; or (iv) if
the Service of a Participant is terminated due to death or Disability, the
vested portion of his or her then-outstanding Options and/or SARs may be
exercised within six months after the date of termination of
Service.
SECTION 5. SHARES SUBJECT TO PLAN AND
SHARE LIMITS.
(a) Basic
Limitation. The stock issuable under the Plan shall be authorized but unissued
Shares. The aggregate number of Shares reserved for Awards under the Plan shall
not exceed 1,900,000 Shares, subject to adjustment pursuant to
Section 10.
(b)
Additional Shares. If Options or SARs are forfeited or are terminated for any
reason before being exercised, then the Shares underlying such Awards shall
again become available for Awards under the Plan. SARs to be settled in Shares
shall be counted in full against the number of Shares available for issuance
under the Plan, regardless of the number of Shares issued upon settlement of the
SARs. Shares withheld in satisfaction of tax obligations
pursuant to Section 13 as well as the Shares that represent payment of the
Exercise Price shall cease to be available under the Plan. Shares that have
actually been issued under the Plan under any Award shall not be returned to the
Plan and shall not become available for future distribution under the Plan;
provided, however, that if unvested Shares of Stock Grants or Stock Units are
repurchased by the Company or are forfeited to the Company, such Shares shall
become available for future grant under the Plan. To the extent an Award under
the Plan is paid out in cash rather than Shares, such cash payment shall not
result in a reduction of the number of Shares available for issuance under the
Plan.
(c)
Dividend Equivalents. Any dividend equivalents distributed as a Share equivalent
under the Plan shall be applied against the number of Shares available for
Awards.
(d) Share
Limits.
|
|
(i)
|
Limits
on Options. No Key Service Provider shall receive Options to purchase
Shares during any Fiscal Year covering in excess of 500,000 Shares. The
aggregate maximum number of Shares that may be issued in connection with
ISOs shall be 1,900,000 Shares.
|
|
|
(ii)
|
Limits
on SARs. The aggregate maximum number of Shares that may be issued in
connection with SARs shall be 1,900,000 Shares. No Key Service Provider
shall receive Awards of SARs during any Fiscal Year covering in excess of
500,000 Shares.
|
|
|
(iii)
|
Limits
on Stock Grants and Stock Units. The aggregate maximum number of Shares
that may be issued as Stock Grants or Stock Units shall in the aggregate
be 1,900,000 Shares. No Key Service Provider shall receive Stock Grants or
Stock Units during any Fiscal Year covering, in the aggregate, in excess
of 250,000 Shares.
|
Exhibit
99.1
|
|
(iv)
|
Limits
on Awards to Non-Employee Directors. Awards to Non-Employee Directors
shall be determined by the Committee provided, however that no
Non-Employee Directors shall receive Awards during any Fiscal Year
covering, in the aggregate, in excess of 30,000
Shares.
|
|
|
(v)
|
The
foregoing share limits will be construed in a manner consistent with
Section 162(m) of the Code.
|
SECTION 6. TERMS AND CONDITIONS OF
OPTIONS.
(a) Stock
Option Agreement. Each Grant of an Option under the Plan shall be evidenced and
governed exclusively by a Stock Option Agreement between the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions that are not
inconsistent with the Plan and that the Committee deems appropriate for
inclusion in a Stock Option Agreement (including without limitation any
performance conditions). The provisions of the various Stock Option Agreements
entered into under the Plan need not be identical. The Stock Option Agreement
shall also specify whether the Option is an ISO or an NSO.
(b)
Number of Shares. Each Stock Option Agreement shall specify the number of Shares
that are subject to the Option and shall be subject to adjustment of such number
in accordance with Section 10.
(c)
Exercise Price. An Option’s Exercise Price shall be established by the Committee
and set forth in a Stock Option Agreement. The Exercise Price of an Option shall
not be less than 100% of the Fair Market Value (110% for ISO grants to
10-Percent Stockholders) on the date of Grant. No such Award, once granted, may
be repriced other than in accordance with the applicable stockholder approval
requirements of NASDAQ.
(d)
Exercisability and Term. Each Stock Option Agreement shall specify the date when
all or any installment of the Option is to become exercisable. The Stock Option
Agreement shall also specify the term of the Option; provided that the term of
an Option shall in no event exceed seven years from the date of Grant. A Stock
Option Agreement may provide for accelerated vesting in the event of the
Participant’s death, Disability, or other events. Notwithstanding any other
provision of the Plan, no Option can be exercised after the expiration date
provided in the applicable Stock Option Agreement.
(e)
Payment for Option Shares. The Exercise Price of Shares issued upon exercise of
Options shall be payable in cash at the time when such Shares are purchased,
except as follows and if so provided for in an applicable Stock Option
Agreement:
|
|
(i)
|
Surrender
of Stock. Payment for all or any part of the Exercise Price may be made
with Shares which have already been owned by the Optionee; provided that
the Committee may, in its sole discretion, require that Shares tendered
for payment be previously held by the Optionee for a minimum duration
(e.g., to avoid financial accounting charges to the Company’s earnings).
Such Shares shall be valued at their Fair Market
Value.
|
Exhibit
99.1
|
|
(ii)
|
Cashless
Exercise. Payment for all or a part of the Exercise Price may be made
through Cashless Exercise.
|
|
|
(iii)
|
Other
Forms of Payment. Payment may be made in any other form that is consistent
with applicable laws, regulations and rules and approved by the
Committee.
|
In the
case of an ISO granted under the Plan, payment shall be made only pursuant to
the express provisions of the applicable Stock Option Agreement. The Stock
Option Agreement may specify that payment may be made in any form(s) described
in this Section 6(e). In the case of an NSO granted under the Plan, the
Committee may, in its discretion at any time, accept payment in any form(s)
described in this Section 6(e).
(f)
Modifications or Assumption of Options. Within the limitations of the Plan, the
Committee may modify, extend or assume outstanding options or may accept the
cancellation of outstanding options (whether granted by the Company or by
another issuer) in return for the grant of new Options for the same or a
different number of Shares and at the same or a different Exercise Price.
Notwithstanding the preceding sentence or anything to the contrary, no
modification of an Option shall, without the consent of the Optionee, impair his
or her rights or obligations under such Option and, unless there is approval by
the Company stockholders, the Committee may not Re-Price outstanding
Options.
(g)
Assignment or Transfer of Options. Except as otherwise provided in the
applicable Stock Option Agreement and then only to the extent permitted by
applicable law, no Option shall be transferable by the Optionee other than by
will or by the laws of descent and distribution. Except as otherwise provided in
the applicable Stock Option Agreement, an Option may be exercised during the
lifetime of the Optionee only or by the guardian or legal representative of the
Optionee. No Option or interest therein may be assigned, pledged or hypothecated
by the Optionee during his or her lifetime, whether by operation of law or
otherwise, or be made subject to execution, attachment or similar
process.
SECTION 7. TERMS AND CONDITIONS OF
STOCK APPRECIATION RIGHTS.
(a) SAR
Agreement. Each Award of a SAR under the Plan shall be evidenced by a SAR
Agreement between the Participant and the Company. Such SAR shall be subject to
all applicable terms of the Plan and may be subject to any other terms that are
not inconsistent with the Plan (including without limitation any performance
conditions). A SAR Agreement may provide for a maximum limit on the amount of
any payout notwithstanding the Fair Market Value on the date of exercise of the
SAR. The provisions of the various SAR Agreements entered into under the Plan
need not be identical. SARs may be granted in consideration of a reduction in
the Participant’s compensation.
(b)
Number of Shares. Each SAR Agreement shall specify the number of Shares to which
the SAR pertains and is subject to adjustment of such number in accordance with
Section 10.
Exhibit
99.1
(c)
Exercise Price. Each SAR Agreement shall specify the Exercise Price. A SAR
Agreement may specify an Exercise Price that varies in accordance with a
predetermined formula while the SAR is outstanding. The Exercise Price of a SAR
shall not be less than 100% of the Fair Market Value on the date of
Grant.
(d)
Exercisability and Term. Each SAR Agreement shall specify the date when all or
any installment of the SAR is to become exercisable. The SAR Agreement shall
also specify the term of the SAR which shall not exceed seven years from the
date of Grant. A SAR Agreement may provide for accelerated exercisability in the
event of the Participant’s death, Disability, or other events and may provide
for expiration prior to the end of its term in the event of the termination of
the Participant’s Service. SARs may be awarded in combination with Options or
Stock Grants, and such an Award shall provide that the SARs will not be
exercisable unless the related Options or Stock Grants are forfeited. A SAR may
be included in an ISO only at the time of Grant but may be included in an NSO at
the time of Grant or at any subsequent time, but not later than six months
before the expiration of such NSO.
(e)
Exercise of SARs. If, on the date when a SAR expires, the Exercise Price under
such SAR is less than the Fair Market Value on such date but any portion of such
SAR has not been exercised or surrendered, then such SAR shall automatically be
deemed to be exercised as of such date with respect to such portion. Upon
exercise of a SAR, the Participant (or any person having the right to exercise
the SAR after Participant’s death) shall receive from the Company
(i) Shares, (ii) cash or (iii) any combination of Shares and
cash, as the Committee shall determine at the time of grant of the SAR, in its
sole discretion. The amount of cash and/or the Fair Market Value of Shares
received upon exercise of SARs shall, in the aggregate, be equal to the amount
by which the Fair Market Value (on the date of surrender) of the Shares subject
to the SARs exceeds the Exercise Price of the Shares.
(f)
Modification or Assumption of SARs. Within the limitations of the Plan, the
Committee may modify, extend or assume outstanding SARs or may accept the
cancellation of outstanding SARs (including stock appreciation rights granted by
another issuer) in return for the grant of new SARs for the same or a different
number of Shares and at the same or a different Exercise Price. Notwithstanding
the preceding sentence or anything to the contrary, no modification of a SAR
shall, without the consent of the Participant, impair his or her rights or
obligations under such SAR and, unless there is approval by the Company
stockholders, the Committee may not Re-Price outstanding SARs.
(g)
Assignment or Transfer of SARs. Except as otherwise provided in the applicable
SAR Agreement and then only to the extent permitted by applicable law, no SAR
shall be transferable by the Participant other than by will or by the laws of
descent and distribution. Except as otherwise provided in the applicable SAR
Agreement, a SAR may be exercised during the lifetime of the Participant only or
by the guardian or legal representative of the Participant. No SAR or interest
therein may be assigned, pledged or hypothecated by the Participant during his
or her lifetime, whether by operation of law or otherwise, or be made subject to
execution, attachment or similar process.
Exhibit
99.1
SECTION 8. TERMS AND CONDITIONS FOR
STOCK GRANTS.
(a) Time,
Amount and Form of Awards. Awards made pursuant to this Section 8 shall be
granted in the form of a Stock Grant. A Stock Grant may also be awarded in
combination with NSOs, and such an Award may provide that the Stock Grant will
be forfeited in the event that the related NSOs are exercised.
(b) Stock
Grant Agreement. Each Stock Grant awarded under the Plan shall be evidenced and
governed exclusively by a Stock Grant Agreement between the Participant and the
Company. Each Stock Grant shall be subject to a period of
restriction as determined by the Committee during which Shares subject to such
Stock Grant are forfeitable to the Company upon such conditions as are set forth
in the applicable Stock Grant Agreement. Each Stock Grant shall also
be subject to all applicable terms and conditions of the Plan and may be subject
to any other terms and conditions that are not inconsistent with the Plan that
the Committee deems appropriate for inclusion in the applicable Stock Grant
Agreement (including without limitation any performance conditions). The
provisions of the Stock Grant Agreements entered into under the Plan need not be
identical.
(c)
Payment for Stock Grants. Stock Grants may be issued with or without cash
consideration under the Plan.
(d)
Vesting Conditions. Vesting shall occur, in full or in installments,
upon satisfaction of the conditions specified in the Stock Grant Agreement which
may include Performance Goals pursuant to Section 4(e). A Stock Grant
Agreement may provide for accelerated vesting in the event of the Participant’s
death, Disability, or other events.
(e)
Assignment or Transfer of Stock Grants. Except as provided in the applicable
Stock Grant Agreement and then only to the extent permitted by applicable law, a
Stock Grant awarded under the Plan shall not be anticipated, assigned, attached,
garnished, optioned, transferred or made subject to any creditor’s process,
whether voluntarily, involuntarily or by operation of law. Any act in violation
of this Section 8(e) shall be void. However, this Section 8(e) shall not
preclude a Participant from designating a beneficiary who will receive any
vested outstanding Stock Grant Awards in the event of the Participant’s death,
nor shall it preclude a transfer of vested Stock Grant Awards by will or by the
laws of descent and distribution.
(f)
Voting and Dividend Rights. The holder of a Stock Grant awarded under the Plan
shall have the same voting, dividend and other rights as the Company’s other
stockholders. A Stock Grant Agreement, however, may require that the holder of
such Stock Grant invest any cash dividends received in additional Shares subject
to the Stock Grant. Such additional Shares subject to the Stock Grant shall be
subject to the same conditions and restrictions as the Stock Grant with respect
to which the dividends were paid. Such additional Shares subject to the Stock
Grant shall not reduce the number of Shares available for issuance under
Section 5.
(g)
Modification or Assumption of Stock Grants. Within the limitations of the Plan,
the Committee may modify or assume outstanding Stock Grants or may accept the
cancellation of outstanding Stock Grants (including stock granted by another
issuer) in return for the grant of new Stock Grants for the same or a different
number of Shares. Notwithstanding the preceding sentence or anything to the
contrary, no modification of a Stock Grant shall, without the consent of the
Participant, impair his or her rights or obligations under such Stock
Grant.
Exhibit
99.1
SECTION 9. TERMS AND CONDITIONS OF
STOCK UNITS.
(a) Stock
Unit Agreement. Each grant of Stock Units under the Plan shall be evidenced by a
Stock Unit Agreement between the Participant and the Company. Such Stock Units
shall be subject to all applicable terms of the Plan and may be subject to any
other terms that are not inconsistent with the Plan (including without
limitation any performance conditions). The provisions of the various Stock Unit
Agreements entered into under the Plan need not be identical. Stock Units may be
granted in consideration of a reduction in the Participant’s other
compensation.
(b)
Number of Shares. Each Stock Unit Agreement shall specify the number of Shares
to which the Stock Unit Grant pertains and is subject to adjustment of such
number in accordance with Section 10.
(c)
Payment for Awards. To the extent that an Award is granted in the form of Stock
Units, no cash consideration shall be required of the Award
recipients.
(d)
Vesting Conditions. Each Award of Stock Units shall be subject to vesting.
Vesting shall occur, in full or in installments, upon satisfaction of the
conditions specified in the Stock Unit Agreement which may include Performance
Goals pursuant to Section 4(e). A Stock Unit Agreement may provide for
accelerated vesting in the event of the Participant’s death, Disability, or
other events.
(e)
Voting and Dividend Rights. The holders of Stock Units shall have no voting
rights. Prior to settlement or forfeiture, any Stock Unit awarded under the Plan
may, at the Committee’s discretion, carry with it a right to dividend
equivalents. Such right entitles the holder to be credited with an amount equal
to all cash dividends paid on one Share while the Stock Unit is outstanding.
Dividend equivalents may be converted into additional Stock Units. Settlement of
dividend equivalents may be made in the form of cash, in the form of Shares, or
in a combination of both. Prior to distribution, any dividend equivalents which
are not paid shall be subject to the same conditions and restrictions as the
Stock Units to which they attach. Any entitlement to dividend equivalents or
similar entitlements shall be established and administered consistent either
with exemption from, or compliance with, the requirements of Section 409A of the
Code.
(f) Form
and Time of Settlement of Stock Units. Settlement of vested Stock Units may be
made in the form of (a) cash, (b) Shares or (c) any combination
of both, as determined by the Committee at the time of the grant of the Stock
Units, in its sole discretion. Methods of converting Stock Units into cash may
include (without limitation) a method based on the average Fair Market Value of
Shares over a series of trading days. Vested Stock Units may be settled in a
lump sum or in installments. The distribution may occur or commence when the
vesting conditions applicable to the Stock Units have been satisfied or have
lapsed, or it may be deferred, in accordance with applicable law, to any later
date. The amount of a deferred distribution may be increased by an interest
factor or by dividend equivalents. Until an Award of Stock Units is settled, the
number of such Stock Units shall be subject to adjustment pursuant to
Section 10.
Exhibit
99.1
(g)
Creditors’ Rights. A holder of Stock Units shall have no rights other than those
of a general creditor of the Company. Stock Units represent an unfunded and
unsecured obligation of the Company, subject to the terms and conditions of the
applicable Stock Unit Agreement.
(h)
Modification or Assumption of Stock Units. Within the limitations of the Plan,
the Committee may modify or assume outstanding Stock Units or may accept the
cancellation of outstanding Stock Units (including stock units granted by
another issuer) in return for the grant of new Stock Units for the same or a
different number of Shares. Notwithstanding the preceding sentence or anything
to the contrary, no modification of a Stock Unit shall, without the consent of
the Participant, impair his or her rights or obligations under such Stock
Unit.
(i)
Assignment or Transfer of Stock Units. Except as provided in the applicable
Stock Unit Agreement and then only to the extent permitted by applicable law,
Stock Units shall not be anticipated, assigned, attached, garnished, optioned,
transferred or made subject to any creditor’s process, whether voluntarily,
involuntarily or by operation of law. Any act in violation of this Section 9(i)
shall be void. However, this Section 9(i) shall not preclude a Participant from
designating a beneficiary who will receive any outstanding vested Stock Units in
the event of the Participant’s death, nor shall it preclude a transfer of vested
Stock Units by will or by the laws of descent and distribution.
SECTION 10. PROTECTION AGAINST
DILUTION.
(a) Basic
Adjustments. In the event of a subdivision of the outstanding Shares, a
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the price
of Shares, a combination or consolidation of the outstanding Shares (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization, a spin-off or a similar occurrence, the Committee shall make
such adjustments as it, in its sole discretion, deems appropriate in one or more
of: (i) the number of Shares and the kind of shares or securities available for
future Awards under Section 5; (ii) the limits on Awards specified in
Section 5; (iii) the number of Shares and the kind of shares or securities
covered by each outstanding Award; or (iv) the Exercise Price under each
outstanding SAR or Option.
References
in the Plan to Shares will be construed to include any stock or securities
resulting from an adjustment pursuant to this Section 10. Unless the Committee
determines otherwise, any adjustments hereunder shall be done on terms and
conditions consistent with Section 409A of the Code.
(b)
Certain Other Adjustments. The Committee may also make adjustments of the type
described in Section 10(a) above to take into account distributions to
stockholders other than those provided for in Section 10(a), or any other event,
if the Committee determines that adjustments are appropriate to avoid distortion
in the operation of the Plan and to preserve the value of Awards made hereunder,
having due regard for the qualification of ISOs under Section 422 of the Code,
the requirements of Section 409A of the Code, and for the performance-based
compensation rules of Section 162(m) of the Code, where
applicable.
Exhibit
99.1
(c)
Participant Rights. Except as provided in this Section 10, a Participant
shall have no rights by reason of any issue by the Company of stock of any class
or securities convertible into stock of any class, any subdivision or
consolidation of shares of stock of any class, the payment of any stock dividend
or any other increase or decrease in the number of shares of stock of any class.
If by reason of an adjustment pursuant to this Section 10 a Participant’s
Award covers additional or different shares of stock or securities, then such
additional or different shares and the Award in respect thereof shall be subject
to all of the terms, conditions and restrictions which were applicable to the
Award and the Shares subject to the Award prior to such adjustment.
(d)
Fractional Shares. Any adjustment of Shares pursuant to this Section 10
shall be rounded down to the nearest whole number of Shares. Under no
circumstances shall the Company be required to authorize or issue fractional
shares and no consideration shall be provided as a result of any fractional
shares not being issued or authorized.
SECTION 11. EFFECT OF A CHANGE IN
CONTROL.
(a)
Change in Control. In the event that the Company is a party to a Change in
Control, outstanding Awards shall be subject to the applicable agreement of
merger or reorganization. Such agreement may provide, without limitation, for
the assumption of outstanding Awards by the surviving corporation or its parent,
for their continuation by the Company (if the Company is a surviving
corporation), for accelerated vesting or for their cancellation with or without
consideration, in all cases without the consent of the Participant.
(b)
Acceleration. In the event that a Change in Control occurs with respect to the
Company and there is no assumption or continuation of outstanding Options, SARs
or Stock Units pursuant to Section 11(a), the Committee may determine, in
its sole discretion, that all such outstanding Options, SARs and Stock Units
shall fully vest and be fully exercisable immediately prior to such Change in
Control. The Committee may determine, at the time of granting an Award or
thereafter, that such Award shall become fully vested as to all Shares subject
to such Award in the event that a Change in Control occurs with respect to the
Company. To the extent acceleration pursuant to this Section 10(b) of an Award
subject to Section 409A of the Code would cause the Award to fail to satisfy the
requirements of Section 409A of the Code, the Award shall not be accelerated and
the Committee in lieu thereof shall take such steps as are necessary to ensure
that payment of the Award is made in a medium other than Shares and on terms
that as nearly as possible, but taking into account adjustments required or
permitted by this Section 10, replicate the prior terms of the
Award.
(c)
Additional Limitations: Any Shares and any cash or other property delivered
pursuant to Section 10(b) above with respect to an Award may, in the discretion
of the Committee, contain such restrictions, if any, as the Committee deems
appropriate to reflect any performance or other vesting conditions to which the
Award was subject and that did not lapse (and were not satisfied) in connection
with the Change in Control. In the case of Stock Grants that do not vest in
connection with the Change in Control, the Committee may require that any
amounts delivered, exchanged or otherwise paid in respect of such Stock Grants
in connection with the Change in Control be placed in escrow or otherwise made
subject to such restrictions as the Committee deems appropriate to carry out the
intent of the Plan.
(d)
Dissolution. To the extent not previously exercised or settled, Options, SARs
and Stock Units shall terminate immediately prior to the dissolution or
liquidation of the Company.
Exhibit
99.1
SECTION 12. LIMITATIONS ON
RIGHTS.
(a)
Participant Rights. A Participant’s rights, if any, in respect of or in
connection with any Award is derived solely from the discretionary decision of
the Company to permit the individual to participate in the Plan and to benefit
from a discretionary Award. By accepting an Award under the Plan, a Participant
expressly acknowledges that there is no obligation on the part of the Company to
continue the Plan and/or grant any additional Awards. Any Award granted
hereunder is not intended to be compensation of a continuing or recurring
nature, or part of a Participant’s normal or expected compensation, and in no
way represents any portion of a Participant’s salary, compensation, or other
remuneration for purposes of pension benefits, severance, redundancy,
resignation or any other purpose. The existence of the Plan or the grant of any
Award will not in any way affect the Company's right to Award a person bonuses
or other compensation in addition to Awards under the Plan.
Neither
the Plan nor any Award granted under the Plan shall be deemed to give any
individual a right to remain an employee, consultant or director of the Company,
a Parent, a Subsidiary or an Affiliate. The Company and its Parents and
Subsidiaries and Affiliates reserve the right to terminate the Service of any
person at any time, and for any reason, subject to applicable laws, the
Company’s Articles of Incorporation and Bylaws and a written employment
agreement (if any), and such terminated person shall be deemed irrevocably to
have waived any claim to damages or specific performance for breach of contract
or dismissal, compensation for loss of office, tort or otherwise with respect to
the Plan or any outstanding Award that is forfeited and/or is terminated by its
terms or to any future Award. The loss of existing or potential profit in Awards
will not constitute an element of damages in the event of termination of Service
for any reason, even if the termination is in violation of an obligation of the
Company or any Affiliate to the Participant.
(b)
Stockholders’ Rights. Except with as set forth in Section 8(f), a Participant
shall have no dividend rights, voting rights or other rights as a Stockholder
with respect to any Shares covered by his or her Award prior to the issuance of
such Shares (as evidenced by an appropriate entry on the books of the Company or
a duly authorized transfer agent of the Company). No adjustment shall be made
for cash dividends or other rights for which the record date is prior to the
date when such Shares are issued, except as expressly provided in
Section 10.
(c)
Regulatory Requirements. Any other provision of the Plan notwithstanding, the
obligation of the Company to issue Shares or other securities under the Plan
shall be subject to all applicable laws, rules and regulations and such approval
by any regulatory body as may be required. The Company reserves the right to
restrict, in whole or in part, the delivery of Shares or other securities
pursuant to any Award prior to the satisfaction of all legal requirements
relating to the issuance of such Shares or other securities, to their
registration, qualification or listing or to an exemption from registration,
qualification or listing.
Exhibit
99.1
(d)
Section 409A. Awards under the Plan are intended either to be exempt from the
rules of Section 409A of the Code or to satisfy those rules, and the Plan and
such Awards shall be construed accordingly. Granted Awards may be modified at
any time, in the Committee’s discretion, so as to increase the likelihood of
exemption from or compliance with the rules of Section 409A of the Code, so long
as such modification does not result in a reduction in value to the applicable
Participant (unless the Participant consents in writing to such modification).
Notwithstanding anything to the contrary in the Plan, neither the Company, any
Subsidiary, nor the Board, nor any person acting on behalf of the Company, any
Subsidiary, or the Board, shall be liable to any participant or to the estate or
beneficiary of any participant or to any other holder of an option by reason of
any acceleration of income, or any additional tax, asserted by reason of the
failure of an option to satisfy the requirements of Section 409A of the
Code.
SECTION 13. WITHHOLDING
TAXES.
(a)
General. A Participant shall make arrangements satisfactory to the Company for
the satisfaction of any withholding tax obligations that arise in connection
with his or her Award. The Company shall not be required to issue any Shares or
make any cash payment under the Plan until such obligations are
satisfied.
(b) Share
Withholding. If a public market for the Company’s Shares exists, the Committee
may permit a Participant to have the Company withhold all or a portion of any
Shares that otherwise would be issued to him or her or by surrendering all or a
portion of any Shares that he or she previously acquired in satisfaction of all
or a part of his or her withholding or income tax obligations (but not in excess
of the minimum withholding required by law). Such Shares shall be valued based
on the value of the actual trade or, if there is none, the Fair Market Value as
of the previous day. Any payment of taxes by assigning Shares to the Company may
be subject to restrictions, including, but not limited to, any restrictions
required by rules of the SEC. The Committee may, in its discretion, also permit
a Participant to satisfy withholding or income tax obligations related to an
Award through Cashless Exercise or through a sale of Shares underlying the
Award.
SECTION 14. DURATION AND
AMENDMENTS.
(a) Term
of the Plan. The Plan shall become effective upon its approval by Company
stockholders. The Plan shall terminate on the seventh anniversary of the
Effective Date and may be terminated on any earlier date pursuant to this
Section 14, but previously granted Awards may continue beyond that date in
accordance with their terms.
(b) Right
to Amend or Terminate the Plan. The Board may amend or terminate the Plan at any
time and for any reason. Any such termination of the Plan, or any amendment
thereof, shall not impair any Award previously granted under the Plan. No Awards
shall be granted under the Plan after the Plan’s termination. An amendment of
the Plan shall be subject to the approval of the Company’s stockholders only to
the extent such approval is required by applicable laws, regulations or rules
(including the Code and applicable stock exchange
requirements).
Exhibit
99.2
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
STOCK GRANT
AGREEMENT
This Stock Grant Agreement (the
“Agreement”) is made and entered into as of ___, 200___ by and between Landec
Corporation, a Delaware corporation (the “Company”), and ___ pursuant to the
Landec Corporation 2009 Stock Incentive Plan (the “Plan”). To the extent any
capitalized terms used in this Agreement are not defined, they shall have the
meaning ascribed to them in the Plan, which is attached to, and made a part of,
this Agreement. In the event of a conflict between the terms and provisions of
the Plan and the terms and provisions of this Agreement, the Plan terms and
provisions shall prevail.
In
consideration of the mutual agreements herein contained and intending to be
legally bound hereby, the parties agree as follows:
1. Restricted
Shares. Pursuant to the Plan, the Company hereby transfers to you, and
you hereby accept from the Company, a Stock Grant Award consisting of ______
Shares (the “Restricted Shares”), on the terms and conditions set forth herein
and in the Plan.
2. Vesting
of Restricted Shares. So long as your Service continues, the Restricted
Shares shall vest in accordance with the following schedule: 12/36th
of the total number of Restricted Shares shall vest on ___, 200___ (the first
annual anniversary of the vesting commencement date) and 1/36th of the total
number of Restricted Shares shall vest and become exercisable on each monthly
anniversary thereafter.
3. Termination
of Service/Escrow of Restricted Shares. In the event of the termination
of your Service for any reason, all unvested Restricted Shares shall be
immediately forfeited without consideration. For purposes of facilitating the
enforcement of the provisions of this Section 3, you agree, immediately
upon receipt of the certificate(s) for the Restricted Shares, to deliver such
certificate(s), together with an Assignment Separate from Certificate in the
form attached to this Agreement as Exhibit A
executed by you and by your spouse (if applicable), in blank, to the Secretary
of the Company, or the Secretary’s designee, to hold such certificate(s) and
Assignment Separate from Certificate in escrow and to take all such actions and
to effectuate all such transfers and/or releases as are in accordance with the
terms of this Agreement. You hereby acknowledge that the Secretary of the
Company, or the Secretary’s designee, is so appointed as the escrow holder with
the foregoing authorities as a material inducement to make this Agreement and
that said appointment is coupled with an interest and is accordingly
irrevocable. You agree that said escrow holder shall not be liable to any party
hereof (or to any other party). The escrow holder may rely upon any letter,
notice or other document executed by any signature purported to be genuine and
may resign at any time. You agree that if the Secretary of the Company, or the
Secretary’s designee, resigns as escrow holder for any or no reason, the Board
of Directors of the Company shall have the power to appoint a successor to serve
as escrow holder pursuant to the terms of this Agreement. All regular cash
dividends on the Restricted Shares shall be paid directly to you and shall not
be held in escrow. However, any new, substituted or additional securities or
other property which is issued or distributed with respect to the Restricted
Shares shall be immediately delivered to the Secretary of the Company to be held
in escrow hereunder, but only to the extent such shares are at the time subject
to the escrow requirements hereof. The Restricted Shares held in escrow
hereunder shall be released from escrow as soon as practicable following your
request after the shares vest. Notwithstanding the foregoing, any vested shares
remaining in escrow at of your termination of Service shall be released from
escrow within thirty (30) days following such date.
Exhibit
99.2
4. Election
to Recognize Income in the Year of Grant. Under Section 83 of the
Code, the Fair Market Value of the Restricted Shares on the date the Restricted
Shares vest will be taxable as ordinary income at that time. You understand and
acknowledge that you may elect to be taxed at the time the Restricted Shares are
acquired in an amount equal to the Fair Market Value of the Restricted Shares at
that time, rather than the date the Restricted Shares vest, by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days after the date of this Agreement. The form for
making this election is attached as Exhibit B hereto. YOU
ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY, AND NOT THE COMPANY’S
RESPONSIBILITY, TO FILE A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF YOU
REQUEST THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON YOUR
BEHALF.
5. Withholding
Taxes. You agree to make arrangements satisfactory to the Company for the
satisfaction of any applicable withholding tax obligations that arise in
connection with the Restricted Shares. The Company shall not be required to
release the Restricted Shares from escrow unless and until such obligations are
satisfied.
6. Tax
Advice. You represent, warrant and acknowledge that the Company has made
no warranties or representations to you with respect to the income tax
consequences of the transactions contemplated by this Agreement, and you are in
no manner relying on the Company or the Company’s representatives for an
assessment of such tax consequences. YOU UNDERSTAND THAT THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. YOU SHOULD CONSULT YOUR OWN TAX ADVISOR
REGARDING ANY STOCK GRANT AWARD. NOTHING STATED HEREIN IS INTENDED OR WRITTEN TO
BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF AVOIDING TAXPAYER
PENALTIES.
7. Non-Transferability
of Restricted Shares. Except as permitted by applicable law, Restricted
Shares which have not vested pursuant to Section 2 above shall not be
anticipated, assigned, attached, garnished, optioned, transferred or made
subject to any creditor’s process, whether voluntarily or involuntarily or by
the operation of law. However, this Section 7 shall not preclude you from
designating a beneficiary who will receive any vested Restricted Shares in the
event of the your death, nor shall it preclude a transfer of vested Restricted
Shares by will or by the laws of descent and distribution.
8. No
Employment Rights. You understand, acknowledge and agree that nothing in
this Agreement shall affect in any manner whatsoever the status of your Service
or the right or power of the Company (or any Parent, Subsidiary, or Affiliate)
to terminate your employment or consulting relationship with the Company (or any
Parent, Subsidiary, or Affiliate) at any time, for any such reason, with or
without cause, in accordance with applicable law.
9. Voting
and Other Rights. Subject to the terms of this Agreement, you shall have
all the rights and privileges of a shareholder of the Company while the
Restricted Shares are held in escrow, including the right to vote and to receive
dividends (if any).
10. Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to the conflict of laws
principles thereof.
11. Notices.
All notices, communications and documents under this Agreement shall be in
writing. All notices, communications, and documents directed to the Company and
related to the Agreement, if not delivered by hand, shall be mailed to the
Company’s principal executive office, Attention: Stock Administration. The
current address of the Company’s principal executive office is:
Exhibit
99.2
Landec
Corporation
3603
Haven Avenue
Menlo
Park, CA 94025
All
notices, communications, and documents intended for you and related to this
Agreement, if not delivered by hand, shall be mailed to your address shown on
the last page of this Agreement or such other address as you may specify by
notice complying with this section. Notices, communications, and documents not
delivered by hand shall be mailed by registered or certified mail, return
receipt requested, postage prepaid. All mailings and deliveries related to this
Agreement shall be deemed received only when actually received.
12. Binding
Effect. Subject to the limitations set forth in this Agreement, this
Agreement shall be binding upon, and inure to the benefit of, the executors,
administrators, heirs, legal representatives, successors, and assigns of the
parties hereto.
13. Counterparts.
This Agreement may be signed in counterparts with the same effect as if the
signature to each such counterpart were upon a single instrument, and all
counterparts shall be deemed an original of this Agreement.
14. Severability.
If any provision of this Agreement is held to be unenforceable for any reason,
it shall be adjusted rather than voided, if possible, in order to achieve the
intent of the parties to the extent possible. In any event, all other provisions
of this Agreement shall be deemed valid and enforceable to the full extent
possible.
* * *
*
(Signature Page
Follows)
Exhibit
99.2
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement on this ___ day of ___, 200_.
|
LANDEC
CORPORATION
|
|
|
|
|
|
By:
|
|
|
|
|
|
(Signature)
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
RECIPIENT:
|
|
|
By:
|
|
|
|
|
|
(Signature)
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
Telephone
Number:
|
|
|
|
|
|
Email Address:
|
|
I, ___,
spouse of ___, have read and hereby approve the foregoing Agreement. In
consideration of the Company’s granting my spouse the right to the Restricted
Shares as set forth in the Agreement, I hereby agree to be bound irrevocably by
the Agreement and further agree that any community property or other such
interest that I may have in the Restricted Shares shall hereby be similarly
bound by the Agreement. I hereby appoint my spouse as my attorney-in-fact with
respect to any amendment or exercise of any rights under the
Agreement.
Spouse of
Recipient
Exhibit
99.2
LANDEC
CORPORATION
2009
STOCK INCENTIVE PLAN
EXHIBIT A
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE RECEIVED and pursuant to that certain Stock Grant Agreement between the
undersigned (“Purchaser”) and
Landec Corporation, a Delaware corporation (the “Company”), dated ___,
200___ (the “Agreement”),
Purchaser hereby sells, assigns and transfers unto the Company _____ (___)
shares of the Common Stock of the Company, standing in Purchaser’s name on the
books of the Company and represented by Certificate No. ___, and hereby
irrevocably constitutes and appoints _____ to transfer said stock on the books
of the Company with full power of substitution in the premises. THIS ASSIGNMENT
MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT.
|
Dated:
|
|
|
|
|
|
|
||
|
|
|
||
|
|
(Print
Name)
|
||
|
|
|
||
|
|
|
||
|
|
(Signature)
|
||
|
|
|
||
|
|
|
||
|
|
Spouse
of Purchaser (if
applicable)
|
Instruction:
Please do not fill in any blanks other than the signature line.
Exhibit
99.2
LANDEC
CORPORATION
2009
STOCK INCENTIVE PLAN
EXHIBIT B
ELECTION
UNDER SECTION 83(B)
OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED
The
undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal
Revenue Code or 1986, as amended, to include in taxpayer’s gross income for the
current taxable year, the amount of any compensation taxable to taxpayer in
connection with taxpayer’s receipt of the property described below:
|
1.
|
The
name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
|
||
|
NAME
OF TAXPAYER:
___________________________________________________
|
|||
|
NAME
OF SPOUSE:
______________________________________________________
|
|||
|
ADDRESS:
______________________________________________________________
|
|||
|
________________________________________________________________________
|
|||
|
IDENTIFICATION
NO. OF TAXPAYER: _____________________________________
|
|||
|
IDENTIFICATION
NO. OF SPOUSE: ________________________________________
|
|||
|
TAXABLE
YEAR:
________________________________________________________
|
|||
|
2.
|
The
property with respect to which the election is made is described as
follows:
|
||
|
______
shares of the Common Stock of Landec Corporation, a Delaware
corporation.
|
|||
|
3.
|
The
date on which the property was transferred is:
____________.
|
||
|
4.
|
The
property is subject to the following restrictions: [describe
restrictions]
|
||
|
Forfeiture
upon termination of taxpayer’s employment or consulting
relationship.
|
|||
|
5.
|
The
fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never
lapse, of such property is: $______.
|
||
|
6.
|
The
amount (if any) paid for such property:
$______.
|
Exhibit
99.2
The undersigned has submitted a copy of
this statement to the person for whom the services were performed in connection
with the undersigned’s receipt of the above-described property. The transferee
of such property is the person performing the services in connection with the
transfer of said property.
The undersigned understands
that the foregoing election may not be revoked except with the consent of the
Commissioner.
|
Dated:
|
|
|
|
|
|
|
|
|
|
|
|
(Print
Name)
|
|
|
|
|
|
|
|
|
|
(Signature)
|
|
|
|
|
|
|
|
|
|
Spouse
of Taxpayer (if
applicable)
|
Exhibit
99.3
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
NOTICE OF
STOCK OPTION GRANT
|
Optionee:
|
You
have been granted an option (the “Option”) to purchase Common Stock of Landec
Corporation (the “Company”), as follows:
|
Date
of Grant:
|
_______________________ | |||
|
Exercise
Price Per Share:
|
_______________________ | |||
|
Total
Number of Shares Granted:
|
_______________________ | |||
|
Total
Exercise Price:
|
_______________________ | |||
|
Type
of Option:
|
_______
Incentive Stock Option
_______
Nonstatutory Stock Option
|
|||
|
Term/Expiration
Date:
|
_______________________ | |||
|
Vesting
Commencement Date:
|
_______________________ | |||
|
Vesting
Schedule:
|
So
long as your Service continues, the Shares underlying this Option shall
vest and become exercisable in accordance with the following schedule:
1/36th of the total number of Shares subject to this Option shall vest and
become exercisable on the one-month anniversary of the Vesting
Commencement Date and on each monthly anniversary
thereafter.
|
|||
|
Termination
Period:
|
This
Option may be exercised for six months after termination of your Service
except as set forth in Section 4 of the Stock Option Agreement (but
in no event later than the Expiration Date). Optionee is responsible for
keeping track of the exercise period following a termination of his or her
Service for any reason. The Company will not provide further notice of
such
period.
|
Unless otherwise defined in this Notice
of Stock Option Grant, the terms used herein shall have the meanings assigned to
them in the Plan.
By your signature and the signature of
the Company’s representative below, you and the Company agree that this Option
is granted under and governed by the terms and conditions of the Landec
Corporation 2009 Stock Incentive Plan and the Stock Option Agreement, all of
which are attached to, and made a part of, this document.
Exhibit 99.3
In addition, you agree and acknowledge
that your rights to any Shares underlying this Option will be earned only as you
provide Service over time, that the grant of the Option is not as consideration
for services you rendered to the Company (or any Parent, Subsidiary, or
Affiliate), prior to your Vesting Commencement Date, and that nothing in this
Notice of Stock Option Grant or the attached documents confers upon you any
right to continue your employment or consulting relationship with the Company
(or any Parent, Subsidiary, or Affiliate) for any period of time, nor does it
interfere in any way with your right or the Company’s (or any Parent’s,
Subsidiary’s, or Affiliate’s) right to terminate that relationship at any time,
for any reason, with or without cause.
|
OPTIONEE:
|
LANDEC
CORPORATION
|
||
|
|
By:
|
|
|
|
Signature
|
|||
|
|
Title:
|
|
|
|
Print
Name
|
|||
Exhibit 99.3
LANDEC
CORPORATION
2009
STOCK INCENTIVE PLAN
STOCK
OPTION AGREEMENT
1. Grant of
Option. Landec Corporation, a Delaware corporation (the “Company”),
hereby grants to the Optionee named in the Notice of Stock Option Grant attached
to this Stock Option Agreement (the “Optionee”), an option (the “Option”) to
purchase the total number of shares of Common Stock (the “Shares”) set forth in
the Notice of Stock Option Grant (the “Notice”), at the exercise price per Share
set forth in the Notice (the “Exercise Price”) subject to the terms, definitions
and provisions of the 2009 Stock Incentive Plan (the “Plan”), which is
incorporated in this Stock Option Agreement (the “Agreement”) by reference.
Unless otherwise defined in this Agreement, the terms used in this Agreement
shall have the meanings defined in the Plan.
This
Option is intended to be an Incentive Stock Option as defined in
Section 422 of the Code only to the extent so designated in the Notice, and
to the extent it is not so designated or to the extent the Option does not
qualify as an Incentive Stock Option, it is intended to be a Nonstatutory Stock
Option. Notwithstanding the foregoing, even if designated as an Incentive Stock
Option, in the event that the Shares subject to this Option (and all other
Incentive Stock Options granted to Optionee by the Company or any Parent or
Subsidiary, including under other plans of the Company) that first become
exercisable in any calendar year have an aggregate fair market value (determined
for each Share as of the date of grant of the option covering such Share) in
excess of $100,000, the Shares in excess of $100,000 shall be treated as subject
to a Nonstatutory Stock Option in accordance applicable law.
2. Exercise
of Option. This Option shall be exercisable during its term in accordance
with the Vesting Schedule set out in the Notice and with the applicable
provisions of the Plan as follows:
(a) Right to
Exercise.
(i)
This Option may not be exercised for a fraction of a share.
(ii) In
the event of Optionee’s termination of Service, the exercisability of the Option
shall be governed by Section 4 below, subject to the limitations contained
in paragraph (iii) below.
(iii)
In no event may this Option be exercised after the Expiration Date as set forth
in the Notice.
(b) Method of
Exercise.
(i) This
Option may be exercised by delivering to the Company a fully executed Notice of
Exercise (in the form attached as Exhibit A) which shall state the
Optionee’s election to exercise the Option, the number of Shares in respect of
which the Option is being exercised, and such other representations and
agreements as to the holder’s investment intent with respect to such Shares as
may be required by the Company pursuant to the provisions of the Plan. Such
written notice shall be signed by Optionee and shall be delivered to the Company
by such means as are determined to constitute adequate delivery by the Plan
Administrator in its discretion. The Notice of Exercise shall be accompanied by
payment of the Exercise Price. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Notice of Exercise accompanied by
the Exercise Price.
Exhibit 99.3
(ii) As
a condition to the exercise of this Option, Optionee agrees to make adequate
provision for any applicable federal, state or other tax withholding
obligations, if any, which arise upon the exercise of the Option or disposition
of Shares, whether by withholding, direct payment to the Company, or
otherwise.
(iii) The
Company is not obligated, and will have no liability for failure, to issue or
deliver any Shares upon exercise of the Option unless such issuance or delivery
would comply with all applicable laws, with such compliance determined by the
Company in consultation with its legal counsel. This Option may not be exercised
if the issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 221 of Title 12 of the Code of Federal Regulations as promulgated by
the Federal Reserve Board. As a condition to the exercise of this Option, the
Company may require Optionee to make any representation and warranty to the
Company as may be required by any applicable laws. Assuming such compliance, for
income tax purposes the Shares shall be considered transferred to Optionee on
the date on which the Option is exercised with respect to such
Shares.
3. Method of
Payment. Payment of the Exercise Price shall be by any of the following,
or a combination of the following, at the election of Optionee: (a) cash,
(b) check, (c) surrender of other Shares, provided that the Company
may, in its sole discretion, require that Shares tendered for payment be
previously held by the Optionee for a minimum duration, or (d) Cashless
Exercise.
4. Termination
of Relationship.
Following the date of termination of Optionee’s Service for any reason
(the “Termination
Date”), Optionee may exercise the Option only as set forth in the Notice
and this Section 4. To the extent that Optionee does not exercise this
Option within the Termination Period set forth in the Notice or the termination
periods set forth below, the Option shall terminate in its entirety. In no
event, may any Option be exercised after the Expiration Date of the Option as
set forth in the Notice. In the event of termination of Optionee’s Service other
than as a result of Optionee’s Disability or death or for Cause, Optionee may,
to the extent Optionee is vested in the Option Shares at the Termination Date,
exercise this Option during the Termination Period set forth in the Notice. In
the event of any other termination, Optionee may exercise the Option only as
described below:
(a)
Termination
upon Disability of Optionee. In the event of termination
of Optionee’s Service as a result of Optionee’s Disability, Optionee may, but
only within six months from the Termination Date, exercise this Option to the
extent Optionee was vested in the Option Shares as of such Termination
Date.
(b) Death of
Optionee. In the
event of the death of Optionee while in Service, the Option may be exercised at
any time within six months following the date of death by Optionee’s estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent Optionee was vested in the Option Shares as
of the Termination Date.
(c)
Termination
for Cause. In the
event Optionee’s Service is terminated for Cause, the Option shall terminate
immediately upon such termination for Cause. In the event Optionee’s employment
or consulting relationship with the Company is suspended pending investigation
of whether such relationship shall be terminated for Cause, all Optionee’s
rights under the Option, including the right to exercise the Option, shall be
suspended during the investigation period.
5. Non-Transferability
of Option. This Option may not be transferred in any manner otherwise
than by will or by the laws of descent or distribution. The designation of a
beneficiary does not constitute a transfer. This Option may be exercised during
the lifetime of Optionee only by Optionee. The terms of this Option shall be
binding upon the executors, administrators, heirs, successors and assigns of
Optionee.
Exhibit 99.3
6. No
Employment Rights. Optionee understands and agrees that the vesting of
Shares pursuant to the Vesting Schedule is earned only by continuing as an
Employee or Consultant at the will of the Company (or any Parent, Subsidiary, or
Affiliate) and not through the act of being hired, being granted this Option or
acquiring Shares under this Agreement. Optionee further acknowledges and agrees
that nothing in this Agreement, nor in the Plan which is incorporated in this
Agreement by reference, shall confer upon Optionee any right with respect to
continuation as an Employee or Consultant with the Company (or any Parent,
Subsidiary, or Affiliate), nor shall it interfere in any way with his or her
right or the Company’s (or any Parent’s, Subsidiary’s, or Affiliate’s) right to
terminate his or her employment or consulting relationship at any time, with or
without cause.
7. Effect of
Agreement. In the event of a conflict between the terms and provisions of
the Plan and the terms and provisions of the Notice and this Agreement, the Plan
terms and provisions shall prevail. The Option, including the Plan, constitutes
the entire agreement between Optionee and the Company on the subject matter
hereof and supersedes all proposals, written or oral, and all other
communications between the parties relating to such subject matter.
8. Applicable
Law. This Agreement will be interpreted and enforced under the laws of
the State of Delaware without regard to the conflict of laws principles
thereof.
9. Signature.
This Agreement shall be deemed executed by the Company and Optionee upon
execution by such parties of the Notice attached to this
Agreement.
Exhibit 99.3
LANDEC
CORPORATION
2009
STOCK INCENTIVE PLAN
STOCK
OPTION
EXHIBIT
A
NOTICE OF
EXERCISE
|
To:
|
Landec
Corporation
|
|
Attn:
|
Administrator
of the 2009 Stock Incentive Plan
|
|
Subject:
|
Notice
of Intention to Exercise Stock
Option
|
This Notice of Exercise constitutes
official notice that the undersigned intends to exercise Optionee’s option to
purchase ___shares of Landec Corporation Common Stock, under and pursuant to the
Company’s 2009 Stock Incentive Plan (the “Plan”) and the Notice of Stock Option
and Stock Option Agreement (the “Agreement”) dated ___, as follows:
|
Number
of Shares:
|
________________________________
|
|||
|
Exercise
Price per Share:
|
________________________________
|
|||
|
Total
Exercise Price:
|
________________________________
|
|||
|
Method
of Payment of Exercise Price:
|
________________________________
|
|||
|
The
shares should be registered in the name
(s) of:
|
||||
and .
1
By signing below, I hereby agree to be
bound by all of the terms and conditions set forth in the Plan and the
Agreement. If applicable, proof of my right to purchase the shares pursuant to
the Plan and the Agreement is enclosed. 2
Dated:
|
(Signature)
|
(Signature)3
|
|
|
(Please
Print Name)
|
(Please
Print Name)
|
|
|
(Full
Address)
|
(Full
Address)
|
Exhibit
99.3
|
1
|
If
more than one name is listed, please specify whether the owners will hold
the shares as community property or as joint tenants with the right of
survivorship.
|
|
|
2
|
Applicable
if someone other than the Optionee (e.g., a death beneficiary) is
exercising the stock option.
|
|
|
3
|
Each
person in whose name shares are to be registered must sign this Notice of
Exercise.
|
Exhibit
99.4
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
STOCK
UNIT AGREEMENT
This Stock Unit Agreement (the
“Agreement”) is made and entered into as of ___, 20___ by and between Landec
Corporation, a Delaware corporation (the “Company”), and ___ pursuant to the
Landec Corporation 2009 Stock Incentive Plan (the “Plan”). To the extent any
capitalized terms used in this Agreement are not defined, they shall have the
meaning ascribed to them in the Plan, which is attached to, and made a part of,
this Agreement. In the event of a conflict between the terms and provisions of
the Plan and the terms and provisions of this Agreement, the Plan terms and
provisions shall prevail.
In consideration of the mutual
agreements herein contained and intending to be legally bound hereby, the
parties agree as follows:
1. Restricted
Stock Units. Pursuant to the Plan, the Company hereby grants to you, and
you hereby accept from the Company, ___Stock Units (the “Restricted Stock
Units”), on the terms and conditions set forth herein and in the
Plan.
2. Vesting
of Restricted Stock Units. So long as your Service continues, the
Restricted Stock Units shall vest in accordance with the following schedule:
100% of the total number of Restricted Stock Units shall vest on the third
anniversary of the date of grant.
3. Termination
of Service. In the event of the termination of your Service for any
reason, all unvested Restricted Stock Units shall be immediately forfeited
without consideration.
4. Settlement
of Restricted Stock Units. Restricted Stock Units shall be automatically
settled in Shares upon vesting pursuant to Section 2 above, provided that
the Company shall have no obligation to issue Shares pursuant to this Agreement
unless and until you have satisfied any applicable tax withholding obligations
pursuant to Section 5 below. Issuance of such Shares shall be made as soon
as reasonably practicable following the applicable vesting date, but in any
event no later than March 15 of the year following which the Restricted Stock
Units vest.
5. Withholding
Taxes. You agree to make arrangements satisfactory to the Company for the
satisfaction of any applicable withholding tax obligations that arise in
connection with the Restricted Stock Units. The Company shall not be required to
issue Shares pursuant to this Agreement unless and until such obligations are
satisfied.
6. Tax
Advice. You represent, warrant and acknowledge that the Company has made
no warranties or representations to you with respect to the income tax
consequences of the transactions contemplated by this Agreement, and you are in
no manner relying on the Company or the Company’s representatives for an
assessment of such tax consequences. YOU UNDERSTAND THAT THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. YOU SHOULD CONSULT YOUR OWN TAX ADVISOR
REGARDING ANY RESTRICTED STOCK UNITS. NOTHING STATED HEREIN IS INTENDED OR
WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF AVOIDING TAXPAYER
PENALTIES.
Exhibit 99.4
7. Non-Transferability
of Restricted Stock Units. Except as permitted by applicable law,
Restricted Stock Units which have not vested pursuant to Section 2 above
shall not be anticipated, assigned, attached, garnished, optioned, transferred
or made subject to any creditor’s process, whether voluntarily or involuntarily
or by the operation of law. However, this Section 7 shall not preclude you
from designating a beneficiary who will receive the Shares underlying any vested
Restricted Stock Units in the event of the your death, nor shall it preclude a
transfer of such Shares by will or by the laws of descent and
distribution.
8. No
Employment Rights. You understand, acknowledge and agree that nothing in
this Agreement shall affect in any manner whatsoever the status of your Service
or the right or power of the Company (or any Parent, Subsidiary, or Affiliate)
to terminate your employment or consulting relationship with the Company (or any
Parent, Subsidiary, or Affiliate) at any time, for any such reason, with or
without cause, in accordance with applicable law.
9. Voting
and Other Rights. Subject to the terms of this Agreement, you shall not
have any voting rights or any other rights and privileges of a shareholder of
the Company unless and until the Restricted Stock Units are settled upon
vesting.
10. Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to the conflict of laws
principles thereof.
11.
Notices.
All notices, communications and documents under this Agreement shall be in
writing. All notices, communications, and documents directed to the Company and
related to the Agreement, if not delivered by hand, shall be mailed to the
Company’s principal executive office, Attention: Stock Administration. The
current address of the Company’s principal executive office is:
Landec
Corporation
3603
Haven Avenue
Menlo
Park, CA 94025
All
notices, communications, and documents intended for you and related to this
Agreement, if not delivered by hand, shall be mailed to your address shown on
the last page of this Agreement or such other address as you may specify by
notice complying with this section. Notices, communications, and documents not
delivered by hand shall be mailed by registered or certified mail, return
receipt requested, postage prepaid. All mailings and deliveries related to this
Agreement shall be deemed received only when actually received.
Exhibit 99.4
12. Binding
Effect. Subject to the limitations set forth in this Agreement, this
Agreement shall be binding upon, and inure to the benefit of, the executors,
administrators, heirs, legal representatives, successors, and assigns of the
parties hereto.
13. Counterparts.
This Agreement may be signed in counterparts with the same effect as if the
signature to each such counterpart were upon a single instrument, and all
counterparts shall be deemed an original of this Agreement.
14. Severability.
If any provision of this Agreement is held to be unenforceable for any reason,
it shall be adjusted rather than voided, if possible, in order to achieve the
intent of the parties to the extent possible. In any event, all other provisions
of this Agreement shall be deemed valid and enforceable to the full extent
possible.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement on this ___day of ___, 20___.
|
LANDEC
CORPORATION
|
|
|
|
By:
|
|
(Signature)
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
RECIPIENT:
|
|
|
|
By:
|
|
(Signature)
|
|
|
|
Address:
|
Telephone
Number:
Email
Address:
Exhibit 99.4
I, ___,
spouse of ___, have read and hereby approve the foregoing Agreement. In
consideration of the Company’s granting my spouse the right to the Restricted
Stock Units as set forth in the Agreement, I hereby agree to be bound
irrevocably by the Agreement and further agree that any community property or
other such interest that I may have in the Restricted Stock Units and the
underlying Shares shall hereby be similarly bound by the Agreement. I hereby
appoint my spouse as my attorney-in-fact with respect to any amendment or
exercise of any rights under the Agreement.
Spouse of
Recipient
Exhibit
99.5
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
NOTICE OF
GRANT OF STOCK APPRECIATION RIGHT
|
Recipient:
|
You have been granted a stock
appreciation right (the “SAR”) with respect to Common Stock of Landec
Corporation (the “Company”), as follows:
|
Date
of Grant:
|
|||
|
Exercise
Price Per Share:
|
|||
|
Total
Number of Shares:
|
|||
|
Total
Exercise Price:
|
|||
|
Term/Expiration
Date:
|
|||
|
Vesting
Commencement Date:
|
|
Vesting
Schedule:
|
So
long as your Service continues, this SAR shall vest and become exercisable
in accordance with the following schedule: this SAR shall vest and become
exercisable with respect to 12/36th of the total number of Shares subject
to this SAR on the first annual anniversary of the Vesting Commencement
Date and 1/36th of the total number of Shares subject to this SAR on each
monthly anniversary thereafter.
|
|
|
Termination
Period:
|
This
SAR may be exercised for six months after termination of your Service
except as set forth in Section 4 of the Stock Appreciation Right
Agreement (but in no event later than the Expiration Date). Recipient is
responsible for keeping track of the exercise period following a
termination of his or her Service for any reason. The Company will not
provide further notice of such
period.
|
Exhibit
99.5
Unless otherwise defined in this Notice
of Stock Appreciation Right, the terms used herein shall have the meanings
assigned to them in the Plan.
By
your signature and the signature of the Company’s representative below, you and
the Company agree that this SAR is granted under and governed by the terms and
conditions of the Landec Corporation 2009 Stock Incentive Plan and the Stock
Appreciation Right Agreement, all of which are attached to, and made a part of,
this document.
In
addition, you agree and acknowledge that your rights to any Shares underlying
this SAR will be earned only as you provide Service over time, that the grant of
the SAR is not as consideration for services you rendered to the Company (or any
Parent, Subsidiary, or Affiliate), prior to your Vesting Commencement Date, and
that nothing in this Notice of Stock Appreciation Right or the attached
documents confers upon you any right to continue your employment or consulting
relationship with the Company (or any Parent, Subsidiary, or Affiliate) for any
period of time, nor does it interfere in any way with your right or the
Company’s (or any Parent’s, Subsidiary’s, or Affiliate’s) right to terminate
that relationship at any time, for any reason, with or without
cause.
|
RECIPIENT:
|
LANDEC CORPORATION | ||
|
By:
|
|||
|
Signature
|
|||
|
Title:
|
|||
|
Print
Name
|
|||
Exhibit
99.5
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
STOCK
APPRECIATION RIGHT AGREEMENT
1.
Grant of
SAR. Landec Corporation, a Delaware corporation (the “Company”), hereby
grants to the Recipient named in the Notice of Stock Appreciation Right attached
to this Stock Appreciation Right Agreement (the “Recipient”), a stock
appreciation right (the “SAR”) to with respect to the total number of shares of
Common Stock (the “Shares”) set forth in the Notice of Stock Appreciation Right
(the “Notice”), at the exercise price per Share set forth in the Notice (the
“Exercise Price”) subject to the terms, definitions and provisions of the 2009
Stock Incentive Plan (the “Plan”), which is incorporated in this Stock
Appreciation Right Agreement (the “Agreement”) by reference. Unless otherwise
defined in this Agreement, the terms used in this Agreement shall have the
meanings defined in the Plan.
2.
Exercise
of SAR. This SAR shall be exercisable during its term in accordance with
the Vesting Schedule set out in the Notice and with the applicable provisions of
the Plan as follows:
(a) Right to
Exercise.
(i)
This SAR may not be exercised with respect to a
fraction of a share.
(ii)
In the event of Recipient’s termination of Service, the exercisability of this
SAR shall be governed by Section 4 below, subject to the limitations
contained in paragraph (iii) below.
(iii)
In no event may this SAR be exercised after the Expiration Date as set forth in
the Notice.
(b)
Method of
Exercise.
(i) This
SAR may be exercised by delivering to the Company a fully executed Notice of
Exercise (in the form attached as Exhibit A) which shall state the
Recipient’s election to exercise the SAR, the number of Shares in respect of
which the SAR is being exercised, and such other representations and agreements
as to the holder’s investment intent with respect to such Shares as may be
required by the Company pursuant to the provisions of the Plan. Such written
notice shall be signed by Recipient and shall be delivered to the Company by
such means as are determined to constitute adequate delivery by the Plan
Administrator in its discretion. This SAR shall be deemed to be exercised upon
receipt by the Company of such fully executed Notice of Exercise.
(ii) As
a condition to the exercise of this SAR, Recipient agrees to make adequate
provision for any applicable federal, state or other tax withholding
obligations, if any, which arise upon the exercise of the SAR or disposition of
Shares, whether by withholding, direct payment to the Company, or
otherwise.
(iii) The
Company is not obligated, and will have no liability for failure, to issue or
deliver any Shares upon exercise of the SAR unless such issuance or delivery
would comply with all applicable laws, with such compliance determined by the
Company in consultation with its legal counsel. This SAR may not be exercised if
the issuance of such Shares upon such exercise would constitute a violation of
any applicable federal or state securities or other law or regulation, including
any rule under Part 221 of Title 12 of the Code of Federal Regulations as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
SAR, the Company may require Recipient to make any representation and warranty
to the Company as may be required by any applicable laws. Assuming such
compliance, for income tax purposes the Shares shall be considered transferred
to Recipient on the date on which the SAR is exercised with respect to such
Shares.
Exhibit
99.5
3. Distribution
Pursuant to Exercise. Upon exercise of this SAR pursuant to
Section 2 above, Recipient will receive a payment equal to the difference
between the aggregate Fair Market Value of the Shares with respect to which the
SAR is exercised and determined as of the exercise date and the aggregate
Exercise Price, which payment shall be made in Shares, provided that any amount
equal to less than the Fair Market Value of one full Share on the exercise date
shall be paid to the Recipient in cash. Such payment shall be made as soon as
reasonably practicable following the exercise.
4.
Termination
of Relationship.
Following the date of termination of Recipient’s Service for any reason
(the “Termination
Date”), Recipient may exercise the SAR only as set forth in the Notice
and this Section 4. To the extent that Recipient does not exercise this SAR
within the Termination Period set forth in the Notice or the termination periods
set forth below, the SAR shall terminate in its entirety. In no event, may the
SAR be exercised after the Expiration Date of the SAR as set forth in the
Notice. In the event of termination of Recipient’s Service other than as a
result of Recipient’s Disability or death or for Cause, Recipient may, to the
extent Recipient is vested in the SAR at the Termination Date, exercise this SAR
during the Termination Period set forth in the Notice. In the event of any other
termination, Recipient may exercise the SAR only as described
below:
(a) Termination
upon Disability of Recipient. In the event of termination
of Recipient’s Service as a result of Recipient’s Disability, Recipient may, but
only within [six] months from the Termination Date, exercise this SAR to the
extent Recipient was vested in the SAR as of such Termination Date.
(b) Death of
Recipient. In the
event of the death of Recipient while in Service, the SAR may be exercised at
any time within six months following the date of death by Recipient’s estate or
by a person who acquired the right to exercise the SAR by bequest or
inheritance, but only to the extent Recipient was vested in the SAR as of the
Termination Date.
(c) Termination
for Cause. In the
event Recipient’s Service is terminated for Cause, the SAR shall terminate
immediately upon such termination for Cause. In the event Recipient’s employment
or consulting relationship with the Company is suspended pending investigation
of whether such relationship shall be terminated for Cause, all Recipient’s
rights under the SAR, including the right to exercise the SAR, shall be
suspended during the investigation period.
5.
Non-Transferability
of SAR. This SAR may not be transferred in any manner otherwise than by
will or by the laws of descent or distribution. The designation of a beneficiary
does not constitute a transfer. This SAR may be exercised during the lifetime of
Recipient only by Recipient. The terms of this SAR shall be binding upon the
executors, administrators, heirs, successors and assigns of
Recipient.
6.
No
Employment Rights. Recipient understands and agrees that the vesting of
Shares pursuant to the Vesting Schedule is earned only by continuing as an
Employee or Consultant at the will of the Company (or any Parent, Subsidiary, or
Affiliate) and not through the act of being hired, being granted this SAR or
acquiring Shares under this Agreement. Recipient further acknowledges and agrees
that nothing in this Agreement, nor in the Plan which is incorporated in this
Agreement by reference, shall confer upon Recipient any right with respect to
continuation as an Employee or Consultant with the Company (or any Parent,
Subsidiary, or Affiliate), nor shall it interfere in any way with his or her
right or the Company’s (or any Parent’s, Subsidiary’s, or Affiliate’s) right to
terminate his or her employment or consulting relationship at any time, with or
without cause.
Exhibit
99.5
7. Effect of
Agreement. In the event of a conflict between the terms and provisions of
the Plan and the terms and provisions of the Notice and this Agreement, the Plan
terms and provisions shall prevail. The SAR, including the Plan, constitutes the
entire agreement between Recipient and the Company on the subject matter hereof
and supersedes all proposals, written or oral, and all other communications
between the parties relating to such subject matter.
8.
Applicable
Law. This Agreement will be interpreted and enforced under the laws of
the State of Delaware without regard to conflict of law principles
thereof.
9.
Signature.
This Agreement shall be deemed executed by the Company and Recipient upon
execution by such parties of the Notice attached to this
Agreement.
Exhibit
99.5
EXHIBIT
A
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
NOTICE OF
EXERCISE
|
To:
|
Landec
Corporation
|
|
|
Attn:
|
Administrator
of the 2009 Stock Incentive Plan
|
|
|
Subject:
|
Notice
of Intention to Exercise Stock Appreciation
Right
|
This Notice of Exercise constitutes
official notice that the undersigned intends to exercise Recipient’s stock
appreciation right covering ___ shares of Landec Corporation Common Stock, under
and pursuant to the Company’s 2009 Stock Incentive Plan (the “Plan”) and the
Notice of Stock Appreciation Right and Stock Appreciation Right Agreement (the
“Agreement”) dated __________, with respect to ___ shares.
The shares issued pursuant to this
exercise should be registered in the name(s) of:
and .4
By signing below, I hereby agree to be
bound by all of the terms and conditions set forth in the Plan and the
Agreement. If applicable, proof of my right to exercise the stock appreciation
right pursuant to the Plan and the Agreement is enclosed.5
Dated:
|
(Signature)
|
(Signature)6
|
||
|
(Please
Print Name)
|
(Please
Print Name)
|
||
|
(Full
Address)
|
(Full
Address)
|
|
4
|
If
more than one name is listed, please specify whether the owners will hold
the shares as community property or as joint tenants with the right of
survivorship.
|
|
5
|
Applicable
if someone other than the Recipient (e.g., a death beneficiary) is
exercising the SAR.
|
|
6
|
Each
person in whose name shares are to be registered must sign this Notice of
Exercise.
|