EXHIBIT 4.1
LANDEC CORPORATION
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
OCTOBER 24, 2001
LANDEC CORPORATION
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This Series B Preferred Stock Purchase Agreement (the "AGREEMENT") is
made as of October 24, 2001 by and between Landec Corporation, a California
corporation (the "COMPANY"), and Seahawk Ranch Irrevocable Trust (the
"PURCHASER").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 SALE AND ISSUANCE OF PREFERRED STOCK.
(a) As of the Closing (as defined below) Company will
have authorized the issuance, pursuant to the terms and conditions of this
Agreement, of 142,857 shares of Series B Preferred Stock, $0.001 par value
(the "SERIES B PREFERRED Stock") having the rights, preferences, privileges and
restrictions set forth in the Certificate of Determination of Rights,
Preferences and Privileges of Series B Preferred Stock attached to this
Agreement as EXHIBIT A (the "CERTIFICATE OF DETERMINATION"), and shall have
filed the Certificate of Determination with the California Secretary of State.
(b) Subject to the terms and conditions of this
Agreement, the Purchaser agrees to purchase at the Closing and the Company
agrees to sell and issue to the Purchaser at the Closing 142,857 shares of
Series B Preferred Stock at a purchase price of $35.00 per share. The shares
of Series B Preferred Stock issued to the Purchaser pursuant to this
Agreement shall be hereinafter referred to as the "STOCK", and the Common
Stock of the Company issuable upon conversion of the Stock shall be
hereinafter referred to as the "CONVERTED COMMON STOCK".
1.2 CLOSING; DELIVERY.
(a) The purchase and sale of the Stock shall take place
at the offices of Orrick, Herrington & Sutcliffe LLP, 1020 Marsh Road, Menlo
Park, California, at 10:00 a.m., on October 24, 2001, or at such other time
and place as the Company and the Purchaser mutually agree upon, orally or in
writing (which time and place are designated as the "CLOSING").
(b) At the Closing, the Company shall deliver to the
Purchaser a certificate representing the Stock being purchased thereby
against payment of the purchase price therefor by certified check or by wire
transfer to the Company's bank account.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents, warrants and covenants to the Purchaser as follows:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of California and has all requisite corporate power and
authority to carry on its business as now
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conducted and as proposed to be conducted. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on its business or
properties.
2.2 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the Standstill
Agreement in the form attached hereto as EXHIBIT B (the "STANDSTILL AGREEMENT")
to be executed by the Purchaser, the performance of all obligations of the
Company hereunder and thereunder and the authorization, issuance and delivery of
the Stock and the Converted Common Stock (together, the "SECURITIES") has been
taken or will be taken prior to the Closing, and the Agreement, when executed
and delivered by the Company, shall constitute a valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
its terms except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
2.3 VALID ISSUANCE OF SECURITIES. The Stock that is being
issued to the Purchaser hereunder, when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable and free of restrictions on
transfer other than restrictions on transfer under this Agreement, the
Standstill Agreement and those set forth under the Certificate of Determination
and applicable state and federal securities laws. Based in part upon the
representations of the Purchaser in this Agreement and subject to the provisions
of Section 2.5 below, the Stock will be issued in compliance with all applicable
federal and state securities laws. The Converted Common Stock has been duly and
validly reserved for issuance, and upon issuance in accordance with the terms of
the Certificate of Determination, shall be duly and validly issued, fully paid
and nonassessable and free of restrictions on transfer other than restrictions
on transfer under this Agreement, the Standstill Agreement and applicable
federal and state securities laws and will be issued in compliance with all
applicable federal and state securities laws.
2.4 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement and the Standstill Agreement, except for such
filings as may be required to be made with the Securities and Exchange
Commission (the "SEC") and the Nasdaq National Market and similar filings under
applicable state securities laws.
2.5 DISCLOSURE. The Company has made available to the
Purchaser all documents (other than preliminary materials) filed with the SEC
since January 1, 2000 (the "SEC DOCUMENTS"). As of their respective filing
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act of 1933 (the "SECURITIES ACT") or the Securities Exchange
Act of 1934 (the "EXCHANGE ACT"), as applicable. Neither the Agreement nor any
of the SEC Documents as of their respective dates included an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein,
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in the light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC Documents (the
"FINANCIAL STATEMENTS") comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the consolidated financial position of the Company and any
subsidiaries at the dates thereof and the consolidated results of their
operations and consolidated cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal, recurring adjustments).
2.6 CHANGES. Except as disclosed herein or in reports filed
with the SEC by the Company, since July 29, 2001, there has not been (a) any
change in the assets, liabilities, financial condition, business prospects or
operations of the Company from those reflected in the Financial Statements,
except changes in the ordinary course of business which, individually and in the
aggregate, have not had a material adverse effect on the Company and its
subsidiaries considered as one enterprise; (b) any material change or amendment
to a contract or arrangement by which the Company or any of its assets or
properties is bound or subject and filed as an exhibit to the SEC Documents; (c)
any resignation or termination of employment, or to the Company's knowledge, any
impending resignation or termination of employment, of any executive officer of
the Company; or (d) any declaration or payment of any dividend or other
distribution of assets of the Company.
2.7 NO CONFLICTS. The execution, delivery, and performance of
and compliance with this Agreement and the Standstill Agreement, and the
issuance and sale of the Stock pursuant hereto and of the Converted Common Stock
pursuant to the Certificate of Determination, are not prohibited by, and will
not violate or conflict with, any provision of the Articles of Incorporation or
Bylaws of the Company, or any provision of any contract to which the Company is
a party, except where any of the foregoing would not have, individually or in
the aggregate, a material adverse effect on the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Company that:
3.1 AUTHORIZATION. This Agreement and the Standstill Agreement
has been duly authorized by all necessary action on the part of the Purchaser
and, when executed and delivered by the Purchaser, will constitute valid and
legally binding obligations of the Purchaser, enforceable in accordance with
their terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors' rights generally, and as limited
by laws relating to the availability of a specific performance, injunctive
relief, or other equitable remedies.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with the Purchaser in reliance upon the Purchaser's representation to the
Company, which by the Purchaser's execution of this Agreement, the Purchaser
hereby confirms, that the Securities to be acquired by the Purchaser will be
acquired for investment for the Purchaser's own account, not as a nominee or
agent for any person or entity and not with a view to the resale or distribution
of
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any part thereof, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, the Purchaser further represents that the Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
person or entity to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Securities. The Purchaser
represents that it has full power and authority to enter into this Agreement.
3.3 DISCLOSURE OF INFORMATION. The Purchaser has had an
opportunity to discuss the Company's business, management, financial affairs and
the terms and conditions of the offering of the Stock with the Company's
management and has reviewed the SEC Documents. The Purchaser understands that
such discussions, as well as the written information issued by the Company, were
intended to describe the aspects of the Company's business which it believes to
be material.
3.4 RESTRICTED SECURITIES. The Purchaser understands that the
Securities have not been registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations as expressed herein. The
Purchaser understands that the Securities are "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold the Securities indefinitely unless they are
registered with the SEC and qualified by state authorities, or an exemption from
such registration and qualification requirements is available. The Purchaser
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of the Purchaser's
control, and which the Company may not be able to satisfy.
3.5 LEGENDS. The Purchaser understands that the Securities
and any securities issued in respect of or exchange for the Securities, may
bear one or all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED UNLESS:
(I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO,
(II) THERE IS AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR (III) THE SHARES ARE SOLD
PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT."
(b) Any legend required by the Blue Sky laws of any state
to the extent such laws are applicable to the shares represented by the
certificate so legended.
3.6 ACCREDITED INVESTOR. The Purchaser is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
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4. REGISTRATION REQUIREMENTS.
4.1 SHELF REGISTRATION. The Company shall use its best efforts
to prepare and file with the Securities and Exchange Commission (the "SEC") a
Registration Statement pursuant to Rule 415 (or any appropriate similar rule
that may be adopted by the SEC) under the Securities Act covering the Converted
Common Stock (including any amendment thereto, the "SHELF REGISTRATION") not
later than ninety (90) days after the date the Purchaser notifies the Company of
its intent to convert all or a portion of the Stock (the "FILING DATE"). The
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Converted Common Stock for resale by the Purchaser from
time to time. The Purchaser agrees to furnish promptly to the Company in writing
all information required from time to time to be disclosed in order to make the
information previously furnished to the Company by such holder not misleading.
4.2 EFFECTIVENESS. The Company shall use its best efforts to
cause the Shelf Registration to become effective under the Securities Act not
later than one hundred twenty (120) days after the Conversion Date (the
"EFFECTIVE DATE"). Subject to the requirements of the Securities Act including,
without limitation, requirements relating to updating through post-effective
amendments, prospectus supplements or otherwise, the Company shall use its best
efforts to keep the Shelf Registration continuously effective and in compliance
with the Securities Act until the earlier of (i) such date as all of the
Converted Common Stock have been resold, or (ii) all of the Converted Common
Stock may be sold under Rule 144 under the Securities Act ("RULE 144") during
any ninety (90) day period. The Company shall use reasonable commercial efforts
to take such actions under the laws of various states as may be required, from
time to time during the effectiveness of the Shelf Registration (and subject to
the Purchaser's compliance with its obligations hereunder), to cause the resale
of the Converted Common Stock pursuant to the Shelf Registration to be lawful.
4.3 SUSPENSION PERIODS. Following the effectiveness of the
Shelf Registration filed pursuant to this Section 4, the Company may, at any
time, suspend the effectiveness of such Shelf Registration for up to thirty (30)
days, as appropriate (a "SUSPENSION PERIOD"), by giving notice to the Purchaser,
if the Company shall have determined, through action by its Board of Directors,
that the Company may be required to disclose any material corporate development,
which disclosure, in the judgment of the Company's Board of Directors, could
reasonably be expected to have a material adverse effect on the Company; and at
least two (2) business days prior to implementing any such Suspension Period,
the Company shall deliver to the Purchaser a certificate to that effect.
Notwithstanding the foregoing, no more than two (2) Suspension Periods may occur
in any calendar year. The Company shall use its reasonable commercial efforts to
limit the duration and number of any Suspension Periods, including, without
limitation, preparing and filing with the SEC post-effective amendments to the
Shelf Registration and/or prospectus supplements to the prospectus included in
the Shelf Registration. The Purchaser agrees that, upon receipt of notice from
the Company of a Suspension Period in accordance with the provisions of this
Section 4.3, the Purchaser shall forthwith discontinue disposition of shares
covered by such registration statement or prospectus in accordance with the
provisions of this Section 4.3 until the Purchaser (i) is advised in writing by
the Company that
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the applicable Suspension Period has been terminated and the use of the
prospectus may be resumed, (ii) has received copies of a supplemental or amended
prospectus, if applicable, and (iii) has received copies of any additional or
supplemental filings which are incorporated or deemed to be incorporated by
reference in such prospectus. The Purchaser shall treat any information relating
to a Suspension Period, including its receipt of notice of a Suspension Period,
as confidential information of the Company, and shall not use or disclose any
such information except with the prior written consent of the Company.
4.4 REGISTRATION EXPENSES. The Company shall pay all
Registration Expenses (as defined below) in connection with any registration,
qualification or compliance hereunder, and the Purchaser shall pay all Selling
Expenses (as defined below) and other expenses that are not Registration
Expenses relating to the Converted Common Stock resold by the Purchaser.
"Registration Expenses" shall mean all expenses, except for Selling Expenses,
incurred by the Company in complying with the registration provisions herein
described, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and expenses in connection
with listing the Converted Common Stock for quotation on Nasdaq NMS, fees and
disbursements of counsel for and the independent auditors of the Company, blue
sky fees and expenses, the expense of any special audits incident to or required
by any such registration and the reasonable fees and expenses of one special
counsel to the Purchaser. "Selling Expenses" shall mean selling commissions,
underwriting fees and stock transfer taxes applicable to the Converted Common
Stock.
4.5 NOTIFICATION. In addition to the Company's other
obligations under this Section 4, in connection with the registration of the
Converted Common Stock on the Shelf Registration, the Company shall:
(a) As promptly as practicable after becoming aware of
such event, notify the Purchaser of the occurrence of any event, as a
result of which the prospectus included in the Shelf Registration, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and promptly prepare an amendment to the Shelf Registration and
supplement to the prospectus to correct such untrue statement or omission, and
deliver a number of copies of such supplement and amendment to the Purchaser as
the Purchaser may reasonably request; and
(b) As promptly as practicable after becoming aware of
such event, notify the Purchaser who holds Converted Common Stock being sold of
the issuance by the SEC of any stop order or other suspension of the
effectiveness of the Shelf Registration at the earliest possible time and take
all lawful action to effect the withdrawal, recession or removal of such stop
order or other suspension; and
(c) With a view to making available to the Purchaser the
benefits of Rule 144 and any other rule or regulation of the SEC that may
at any time permit the Purchaser to sell Converted Common Stock to the public
without registration or pursuant to registration, the Company covenants and
agrees to use its reasonable commercial efforts to: (i) make and keep
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public information available, as those terms are understood and defined in Rule
144, until the earlier of (A) the date that is thirty (30) months from the date
of the Closing or (B) such date as all of the Converted Common Stock shall have
been resold; and (ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act.
4.6 INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the
Purchaser from and against any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) to which the Purchaser (including for
such purpose its officers, directors, partners, attorneys and agents) may become
subject (under the Securities Act or otherwise) to the extent such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any untrue statement of a material fact
contained in the Shelf Registration or the prospectus (including any supplement)
contained therein or arise out of, or are based upon, the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in light of the circumstances under which they were made in
the case of the prospectus), not misleading, or to the extent arising out of any
failure by the Company to fulfill any undertaking included in the Shelf
Registration, and the Company will, on a quarterly basis, reimburse the
Purchaser for any legal or other expenses reasonably incurred in investigating
or defending any such action, proceeding or claim; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of, or is based upon (i) an untrue
statement made in such Shelf Registration in reliance upon and in conformity
with information furnished to the Company by or on behalf of the Purchaser, (ii)
the failure of the Purchaser to comply with the covenants and agreements
contained in this Agreement, or (iii) any untrue statement in any prospectus
that is corrected in any subsequent prospectus that was delivered to the
Purchaser prior to the pertinent sale or sales by the Purchaser.
(b) The Purchaser agrees to indemnify and hold harmless
the Company (including for such purpose its officers, directors, partners,
attorneys and agents) from and against any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) to which the Company
may become subject (under the Securities Act or otherwise) to the extent such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration or the
prospectus (including any supplement) contained therein or to the extent arising
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in light of the circumstances under which they were made in the case of
the prospectus), not misleading, in each case, to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Purchaser
specifically for use in preparation of the Shelf Registration. Notwithstanding
the foregoing, the liability of the Purchaser under this Section 4.6(b) shall be
limited to an amount equal to the net proceeds from the sale of the shares sold
by the Purchaser.
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(c) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 4.6, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action (but the omission to
so notify the indemnifying party shall not relieve it from any liability that it
otherwise may have to the indemnified party, except to the extent that the
indemnifying party is materially prejudiced and forfeits substantive rights and
defenses by reason of such failure), and, subject to the provisions hereinafter
stated, in case any such action shall be brought against an indemnified person
and the indemnifying person shall have been notified thereof, the indemnifying
person shall be entitled to participate therein, and, in the case of any claim
as to which both the indemnified party and the indemnifying party are parties,
to the extent that it shall wish, the indemnifying party may assume the defense
thereof, with counsel reasonably satisfactory to the indemnified person. After
notice from the indemnifying person to such indemnified person of the
indemnifying person's election to assume the defense thereof, the indemnifying
person shall not be liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection with the defense
thereof; provided, however, that if there exists or shall exist a conflict of
interest that would make it inappropriate in the reasonable judgment of the
indemnified person for the same counsel to represent both the indemnified person
and such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the expense of
such indemnifying person. If the indemnifying party shall assume the defense of
any such claim, it shall not, without prior written consent of the indemnified
party (which consent shall not unreasonably be withheld), settle or compromise
any such claim or consent to the entry of any judgment that does not include an
unconditional release of the indemnified party from all liabilities with respect
to such claim or judgment. Further, no indemnifying party shall have any
obligation with respect to any settlement entered into by an indemnified party
without the prior written approval of this indemnifying party.
(d) If the indemnification provided for in this Section
4.6 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Purchaser on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Purchaser on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a
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result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
4.7 NASDAQ NMS LISTING. The Company shall use its reasonable
commercial efforts to cause the Converted Common Stock to be listed for
inclusion on the Nasdaq National Market System no later than on the Effective
Date.
4.8 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register the Converted Common Stock under this Section 4 may be
assigned to a transferee or assignee that is an affiliate (as such term is
defined in Rule 405 of the Securities Act) of the Purchaser provided that: (i)
such transfer is otherwise effected in accordance with applicable securities
laws, (ii) written notice is promptly given to the Company and (iii) such
transferee agrees to be bound by the provisions of this Agreement.
5. COVENANTS OF THE COMPANY.
5.1 THE PURCHASER'S FILINGS. The Company shall use its
reasonable commercial efforts to assist the Purchaser and its affiliates in
preparing and filing all reports required by the Purchaser and its affiliates
under the Exchange Act as a result of the transactions under this Agreement,
including Schedule 13D and Form 4, and shall bear all of the expenses relating
to the preparation and filing of such reports.
6. CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT THE CLOSING. The
obligations of the Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Closing.
6.2 PERFORMANCE. The Company shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
6.3 COMPLIANCE CERTIFICATE. The President of the Company shall
deliver to the Purchaser at the Closing a certificate certifying that the
conditions specified in Sections 6.1 and 6.2 have been fulfilled.
6.4 QUALIFICATIONS. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in
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connection with the lawful issuance and sale of the Stock pursuant to this
Agreement shall be obtained and effective as of the Closing.
6.5 OPINION OF COMPANY COUNSEL. The Purchaser shall have
received from Orrick, Herrington & Sutcliffe LLP, counsel for the Company, an
opinion, dated as of the Closing, in substantially the form of EXHIBIT C.
6.6 CERTIFICATE OF DETERMINATION. The Company shall have filed
the Certificate of Determination with the Secretary of State of California on or
prior to the date of the Closing, and the Certificate of Determination shall
continue to be in full force and effect as of the date of the Closing.
6.7 STANDSTILL AGREEMENT. The Company and the Purchaser shall
have executed and delivered the Standstill Agreement between the Company and
the Purchaser in the form attached hereto as EXHIBIT B.
6.8 GOVERNMENTAL CONSENTS. There shall have been obtained at
or prior to the date of the Closing such permits or authorizations, and there
shall been taken such other action, as may be required by any regulatory
authority having jurisdiction over the parties and the subject matter and the
actions herein proposed to be taken.
6.9 LEGAL INVESTMENT. At the time of the Closing the purchase
and sale of the Stock shall be legally permitted by all laws and regulations
to which the Purchaser and the Company are subject.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING. The
obligations of the Company to the Purchaser under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
7.2 PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchaser on or prior to the
Closing shall have been performed or complied with in all material respects.
7.3 QUALIFICATIONS. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Stock pursuant to this Agreement shall be obtained and effective as of
the Closing.
7.4 STANDSTILL AGREEMENT. The Company and the Purchaser shall
have executed and delivered the Standstill Agreement between the Company and
the Purchaser.
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7.5 GOVERNMENTAL CONSENTS. There shall have been obtained at
or prior to the date of the Closing such permits or authorizations, and there
shall been taken such other action, as may be required by any regulatory
authority having jurisdiction over the parties and the subject matter and the
actions herein proposed to be taken.
7.6 LEGAL INVESTMENT. At the time of the Closing the purchase
and sale of the Stock shall be legally permitted by all laws and regulations
to which the Purchaser and the Company are subject.
8. MISCELLANEOUS.
8.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this
Agreement, the warranties, representations and covenants of the Company and the
Purchaser contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing for a period of four
(4) years following the Closing.
8.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
8.3 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts of
law.
8.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
8.5 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, addressed to the party to be notified at
the address set forth on the signature page hereof, or as subsequently modified
by written notice, and (a) if to the Company, with a copy to:
Orrick, Herrington & Sutcliffe LLP
1020 Marsh Road
Menlo Park, CA 94025
Fax: 650-614-7401
Attn: Geoffrey P. Leonard
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or (b) if to the Purchaser, with a copy to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Direct: (650) 843-5191
Fax: (650) 849-7400
Attn: Brett White
8.7 FINDER'S FEE. Each party represents that it neither is,
nor will be, obligated for any other finder's fee or commission in connection
with this transaction. The Purchaser agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature
of a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Purchaser or any of its officers,
employees, or representatives is responsible. The Company agrees to indemnify
and hold harmless the Purchaser from any liability for any commission or
compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
8.8 FEES AND EXPENSES. Each party shall pay its own fees and
expenses irrespective of whether the Closing occurs; provided, however, that in
the event the Closing occurs, the Company shall pay the legal fees and expenses
incurred by the Purchaser in connection with the transactions under this
Agreement, such fees and expenses not to exceed $10,000.
8.9 ATTORNEY'S FEES. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of any of
the Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
8.10 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended with the written consent of the Company and the holders of at least a
majority of the Converted Common Stock (calculated on an as-if-converted basis).
Any amendment or waiver effected in accordance with this Section 8.10 shall be
binding upon the Purchaser and each transferee of the Stock (or the Converted
Common Stock), each future holder of all such securities, and the Company.
8.11 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of
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the Agreement shall be interpreted as if such provision were so excluded and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
8.12 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any holder of any of the Stock, upon any
breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
8.13 ENTIRE AGREEMENT. This Agreement, and the documents
referred to herein constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and any and all other written or oral
agreements existing between the parties hereto are expressly canceled.
8.14 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
[Signature Pages Follow]
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The parties have executed this Series B Preferred Stock Purchase
Agreement as of the date first written above.
COMPANY:
LANDEC CORPORATION
By: /s/ GARY T. STEELE
------------------------------------
Gary T. Steele, President and CEO
Address: Landec Corporation
3603 Haven Avenue
Menlo Park, CA 94025
Tel: (650) 306-1650
Fax: (650) 261-3616
PURCHASER:
SEAHAWK RANCH IRREVOCABLE TRUST
By: /s/ KENNETH E. JONES
------------------------------------
Kenneth E. Jones, Trustee
Address: 550 Pilgrim Drive, Suite F
Foster City, CA 94404
SIGNATURE PAGE TO PURCHASE AGREEMENT