As filed with the Securities and Exchange Commission on October 20, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Landec Corporation
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
94-3025618 |
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(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
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3603 Haven Avenue Menlo Park, California 94025 |
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(Address of Principal Executive Offices) (Zip Code) |
LANDEC CORPORATION 2013 STOCK INCENTIVE PLAN
(Full title of the plan)
Molly A. Hemmeter
President and Chief Executive Officer
Landec Corporation
3603 Haven Avenue
Menlo Park, California 94025
(650) 306-1650
With a copy to:
Geoffrey Leonard, Esq.
King & Spalding LLP
101 Second Street, Suite 2300
San Francisco, California 94105
(415) 318-1200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.:
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Large accelerated filer ☐ |
Accelerated filer ☒ |
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Non-accelerated filer ☐ |
Smaller reporting company ☐ |
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Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price (2) |
Amount of registration fee (2) |
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Common Stock, par value $0.001 per share (1) |
1,000,000 |
$12.875 |
$12,875,000 |
$1,602.94 |
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(1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover an indeterminate number of additional shares which may be offered and issued under the Landec Corporation 2013 Stock Incentive Plan (the “Plan”) to prevent dilution resulting from any stock dividend, stock split, recapitalization or any other similar transaction. |
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(2) |
Estimated pursuant to Rules 457(h) and 457(c) under the Securities Act solely for the purpose of calculating the registration fee of shares reserved for future issuance under the Plan, based upon the average of the high and low sales prices of the Registrant’s Common Stock on October 18, 2017, as reported on the NASDAQ Global Select Market. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The information specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 (the “Registration Statement”) is omitted from this filing in accordance with Rule 428 under the Securities Act and the introductory note to Part I of the Registration Statement. The documents containing the information specified in Part I will be delivered to the participants in the Plan covered by this Registration Statement as required by Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Landec Corporation (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference into this Registration Statement (other than information in a report on Form 8-K that is “furnished” and not “filed” pursuant to Form 8-K, and, except as may be noted in any such Form 8-K, exhibits filed on such form that are related to such information):
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended May 28, 2017, filed with the Commission on August 11, 2017;
(b) The Registrant’s Amendment No. 1 on Form 10-K/A to Form 10-K for the fiscal year ended May 28, 2017, filed with the Commission on August 15, 2017;
(c) The Registrant’s Quarterly Reports on Form 10-Q for the quarter ended August 27, 2017, filed with the Commission on September 28, 2017; and
(d) The description of the Registrant’s Common Stock from its registration statement on Form 8-A, filed with the Commission on December 21, 1995, including any amendment or report filed with the Commission for the purposes of updating such description.
In addition, all documents subsequently filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicate that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law allows for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Registrant’s Certificate of Incorporation and Bylaws provide for indemnification of the Registrant’s directors, officers, employees and other agents to the extent and under the circumstances permitted by the Delaware General Corporation Law. The Registrant has also entered into agreements with its directors and officers that will require the Registrant, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors and officers to the fullest extent permitted by Delaware law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit Number |
Description |
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3.1* |
Certificate of Incorporation of Registrant, incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated November 7, 2008 |
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3.2* |
Amended and Restated Bylaws of Registrant, incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated October 16, 2012 |
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5.1 |
Opinion of King & Spalding LLP |
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23.1 |
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
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23.2 |
Consent of King & Spalding LLP (included in Exhibit 5.1) |
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24.1 |
Power of Attorney (included on the signature page of this Registration Statement) |
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99.1* |
Landec Corporation 2013 Stock Incentive Plan, incorporated herein by reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K, dated October 11, 2013 |
* Incorporated by reference
Item 9. Undertakings.
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1. |
The undersigned Registrant hereby undertakes: |
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(a) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
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(i) |
To include any prospectus required by section 10(a)(3) of the Securities Act; |
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
Provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) of this Item 9 do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference herein.
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(b) |
That for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(c) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
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2. |
The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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3. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on the 19th day of October, 2017.
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LANDEC CORPORATION |
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By: |
/s/ Gregory S. Skinner | ||
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Gregory S. Skinner |
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Vice President of Finance and Chief Financial Officer |
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Molly A. Hemmeter and Gregory S. Skinner as his or her attorney-in-fact, with full power of substitution in each, for him or her in any and all capacities to sign any amendments to this Registration on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Commission, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
Title |
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| /s/ Molly A. Hemmeter |
President, Chief Executive Officer and Director (Principal Executive Officer) |
October 19, 2017 |
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Molly A. Hemmeter |
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| /s/ Gregory S. Skinner |
Chief Financial Officer and Vice President of Finance and Administration (Principal Financial and Accounting Officer) |
October 19, 2017 |
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Gregory S. Skinner |
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| /s/ Frederick Frank | Director |
October 19, 2017 |
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Frederick Frank |
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| /s/ Debbie Carosella | Director |
October 19, 2017 |
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Debbie Carosella |
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| /s/ Albert D. Bolles, Ph.D | Director |
October 19, 2017 |
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Albert D. Bolles, Ph.D |
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| /s/ Tonia Pankopf | Director |
October 19, 2017 |
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Tonia Pankopf |
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| /s/ Catherine Sohn | Director |
October 19, 2017 |
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Catherine Sohn |
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| /s/ Robert Tobin | Director |
October 19, 2017 |
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Robert Tobin |
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| /s/ Gary T. Steele | Director | October 19, 2017 | ||
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Gary T. Steele |
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EXHIBIT INDEX
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Exhibit Number |
Description |
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3.1* |
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3.2* |
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5.1 |
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23.1 |
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
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23.2 |
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24.1 |
Power of Attorney (included on the signature page of this Registration Statement) |
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99.1* |
* Incorporated by reference
Exhibit 5.1
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King & Spalding LLP |
October 20, 2017
Landec Corporation
3603 Haven Street
Menlo Park, California 94025
Re: Landec Corporation Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel for Landec Corporation, a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission. The Registration Statement relates to 1,000,000 shares of the Company’s common stock, par value $0.001 per share, to be issued pursuant to the Landec Corporation 2013 Stock Incentive Plan (the “Plan”).
In connection with this opinion, we have reviewed such matters of law and examined original, certified, conformed or photographic copies of such other documents, records, agreements and certificates as we have deemed necessary as a basis for the opinions hereinafter expressed. In such review, we have assumed the genuineness of signatures on all documents submitted to us as originals and the conformity to original documents of all copies submitted to us as certified, conformed or photographic copies. We have relied, as to the matters set forth therein, on certificates of public officials.
This opinion is limited in all respects to the General Corporation Law of the State of Delaware, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that:
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1. |
The shares to be issued under the Plan are duly authorized; and |
Landec Corporation
October 20, 2017
Page 2
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2. |
When the shares are issued pursuant to the Plan, such shares will be validly issued, fully paid and nonassessable. |
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This opinion is being rendered solely for the benefit of the Company in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration Statement on Form S-8 to be filed by the Company and to the references to us in such registration statement.
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Sincerely, |
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/s/ King & Spalding LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Landec Corporation 2013 Stock Incentive Plan of our reports dated August 10, 2017 with respect to the consolidated financial statements of Landec Corporation and the effectiveness of internal control over financial reporting of Landec Corporation included in its Annual Report (Form 10-K), as amended on August 15, 2017, for the year ended May 28, 2017, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
October 20, 2017