Exhibit
99.5
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
NOTICE OF
GRANT OF STOCK APPRECIATION RIGHT
You have been granted a stock
appreciation right (the “SAR”) with respect to Common Stock of Landec
Corporation (the “Company”), as follows:
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Date
of Grant:
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Exercise
Price Per Share:
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Total
Number of Shares:
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Total
Exercise Price:
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Term/Expiration
Date:
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Vesting
Commencement Date:
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Vesting
Schedule:
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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.
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Termination
Period:
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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.
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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.
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RECIPIENT:
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LANDEC
CORPORATION |
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By:
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Signature
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Title:
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Print
Name
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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.
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.
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
A
LANDEC
CORPORATION
2009 STOCK INCENTIVE
PLAN
NOTICE OF
EXERCISE
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To:
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Landec
Corporation
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Attn:
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Administrator
of the 2009 Stock Incentive Plan
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Subject:
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Notice
of Intention to Exercise Stock Appreciation
Right
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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:
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(Signature)
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(Signature)6
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(Please
Print Name)
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(Please
Print Name)
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(Full
Address)
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(Full
Address)
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4
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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.
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5
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Applicable
if someone other than the Recipient (e.g., a death beneficiary) is
exercising the SAR.
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6
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Each
person in whose name shares are to be registered must sign this Notice of
Exercise.
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