Exhibit 10.56
STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement (this
“ Agreement ”) is made and entered into as of
September 3, 2004, by and between Landec Corporation, a California
corporation (the “ Company ”), and Chiquita
Brands International, Inc., a New Jersey corporation (the “
Purchaser ”).
RECITALS
A.
Whereas, the Company and the
Purchaser are simultaneously entering into that certain License and
Distribution Agreement (the “ License Agreement
”) dated as of the date hereof, regarding the
Purchaser’s use of certain proprietary technology of the
Company for packaging bananas, specialty bananas and
plantains.
B.
Whereas, in connection with the
License Agreement, the Purchaser wishes to purchase from the
Company, and the Company wishes to sell to the Purchaser, shares of
its Common Stock, par value $0.001 (the “ Common Stock
”), on the terms and conditions set forth herein.
AGREEMENT
The parties hereto agree as
follows:
1.
Purchase and Sale of the
Shares .
Subject to the terms and conditions herein contained, on the
twenty-fifth Trading Day (as defined below) following the first
public announcement of the License Agreement (the “
Closing Date ”), the Company shall issue and sell to
the Purchaser, and the Purchaser shall purchase from the Company,
the number of shares of Common Stock determined in accordance with
the formula set forth below (the “ Shares ”) at
the price per share calculated in accordance with the formula set
forth below.
(a)
The “ Price Per Share
” for the Shares shall equal the greater of (i) the
volume-weighted average of the daily closing prices (“
VWAP ”) of the Common Stock on the NASDAQ National
Market during the period beginning on the first trading day on the
NASDAQ National Market (“ Trading Day ”)
immediately following the first public announcement of the License
Agreement and ending on the twentieth (20th) Trading Day following
the date of such announcement (the “ Trading Period
”); provided that for purposes of this calculation the VWAP
shall not exceed $7.20 (as adjusted for stock splits, stock
dividends, reclassifications and the like) or (ii) the closing
price of the Common Stock on the NASDAQ National Market on the
Trading Day immediately preceding the first public announcement of
the License Agreement (the “ Initial Trading Price
”).
(b)
If the Price Per Share equals or
exceeds $6.00 (as adjusted for stock splits, stock dividends,
reclassifications and the like), the number of Shares shall equal
the lesser of (i) 500,000 or (ii) $3,500,000 divided by the Price
Per Share.
(c)
If the Price Per Share is less than
$6.00 (as adjusted for stock splits, stock dividends,
reclassifications and the like), the number of Shares shall equal
$2,000,000 divided by the Price Per Share; provided that if the
VWAP is less than the Initial Trading Price (as adjusted for stock
splits, stock dividends, reclassifications and the like), the
number of Shares shall equal $1,000,000 divided by the Price Per
Share.
(d)
The closing of the purchase of the
Shares (the “ Closing ”) shall be held at the
offices of Orrick, Herrington & Sutcliffe LLP, 1020 Marsh Road,
Menlo Park, CA 94025 at 10:00 a.m. California time on the Closing
Date. At the Closing, the Company shall deliver to the Purchaser a
certificate representing the Shares, registered in such name as the
Purchaser requests, and the Purchaser shall deliver to the Company
by cashier’s check or wire transfer, to a bank account
designated by the Company, the aggregate purchase price for the
Shares and deliver all other documents required of the Purchaser
pursuant to this Agreement.
(e)
The Shares will be offered and sold
to the Purchaser without such offer and sale being registered under
the Securities Act of 1933, as amended (together with the rules and
regulations of the Securities and Exchange Commission (the “
Commission ”) promulgated thereunder, the “
Securities Act ”), in reliance on exemptions
therefrom.
(f)
In connection with the sale of the
Shares, the Company has made available its periodic reports filed
with the Commission under the Securities Exchange Act of 1934 (the
“ Exchange Act ”) since August 31, 2003.
These reports and filings are collectively referred to as the
“ Disclosure Documents ”.
2.
Representations, Warranties
and Covenants of the Company . The Company represents, warrants and
covenants to the Purchaser as follows:
(a)
The Disclosure Documents as of their
respective dates did not, and any amendment or supplement thereto
as of its date did not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The Disclosure Documents, at
the time they were filed with the Commission, complied in all
material respects with the requirements of the Securities Act
and/or the Exchange Act, as the case may be (together with the
rules and regulations of the Commission promulgated thereunder, the
“ Securities Acts ”), as applicable.
(b)
Each of the Company and its
subsidiaries (the “ Subsidiaries ”) has been
duly incorporated and each of the Company and the Subsidiaries is
validly existing in good standing as a corporation under the laws
of its jurisdiction of incorporation, with the requisite corporate
power and authority to own its properties and conduct its business
as now conducted as described in the Disclosure Documents and is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not, individually or in the aggregate, have a material
adverse
2
effect on the business, condition,
properties, or results of operations of the Company and the
Subsidiaries, taken as a whole (any such event, a “
Material Adverse Effect ”).
(c)
The Company has the requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement. This Agreement has been
duly and validly authorized by the Company and, when executed and
delivered by the Company, will constitute a valid and legally
binding agreement of the Company, enforceable against the Company
in accordance with its terms except as the enforcement thereof may
be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors’
rights generally or (B) general principles of equity and the
discretion of the court before which any proceeding therefore may
be brought (regardless of whether such enforcement is considered in
a proceeding at law or in equity) (collectively, the “
Enforceability Exceptions ”).
(d)
The Shares have been duly authorized
and, when issued upon payment thereof in accordance with this
Agreement, will have been validly issued, fully paid and
nonassessable. The capital stock of the Company, including
the Common Stock, conforms to the description thereof contained in
the Disclosure Documents. The shareholders of the Company
have no preemptive or similar rights with respect to the Common
Stock.
(e)
No consent, approval, authorization,
license, qualification, exemption or order of any court or
governmental agency or body or third party is required for the
performance of this Agreement by the Company or for the
consummation by the Company of any of the transactions contemplated
hereby, except for such consents, approvals, authorizations,
licenses, qualifications, exemptions or orders (i) as have
been obtained on or prior to the Closing Date, (ii) as are not
required to be obtained on or prior to the Closing Date that will
be obtained when required, or (iii) the failure to obtain
which would not, individually or in the aggregate, have a Material
Adverse Effect.
(f)
The execution, delivery and
performance by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate, conflict with or
constitute or result in a breach of or a default under (or an event
that, with notice or lapse of time, or both, would constitute a
breach of or a default under) any of (i) the terms or
provisions of any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease, license, franchise agreement, permit,
certificate or agreement or instrument to which any of the Company
or the Subsidiaries is a party or to which any of their respective
properties or assets are subject, (ii) the articles of
incorporation or bylaws of any of the Company or the Subsidiaries
(or similar organizational document) or (iii) any statute,
judgment, decree, order, rule or regulation of any court or
governmental agency or other body applicable to the Company or the
Subsidiaries or any of their respective properties or
assets.
(g)
Except as described in the
Disclosure Documents, there is not pending or, to the best
knowledge of the Company, threatened any action, suit, proceeding,
inquiry or investi
