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As filed with the Securities and Exchange Commission on December 20, 1996.
Registration No. 33-_____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
LIFECORE BIOMEDICAL, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-0948334
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
3515 LYMAN BOULEVARD
CHASKA, MINNESOTA 55318
(Address of Principal Executive Offices and zip code)
____________________________
LIFECORE BIOMEDICAL, INC.
1996 STOCK PLAN
(Full title of the Plan)
____________________________
James W. Bracke, Ph.D.
3515 Lyman Boulevard
Chaska, Minnesota 55318
(612) 368-4300
Copy to:
Martin R. Rosenbaum
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402
(612) 371-3211
____________________________
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CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
________________________________________________________________________________
Common Stock, 3,000,000 shares $16.06 (1) $48,180,000 (1) $14,598.54
$.01 par value
________________________________________________________________________________
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low prices of the Company's Common Stock on the Nasdaq National Market on
December 16, 1996.
PART I
Pursuant to Part I of Form S-8, the information required by Items 1 and 2
of Form S-8 is not filed as a part of this Registration Statement.
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended June 30, 1996.
(b) The Quarterly Report of the Company on Form 10-Q for the quarter ended
September 30, 1996.
(c) The Definitive Proxy Statement dated October 7, 1996 for the Annual
Meeting of Shareholders held on November 14, 1996.
(d) The description of the Company's Common Stock as set forth under
DESCRIPTION OF COMMON STOCK in the Company's Registration Statement on
Form S-2 dated August 30, 1995 (Registration No. 33-62223), including
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
completion or termination of this offering of shares of Common Stock shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of 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.
The Company's Bylaws provide that the Company may indemnify each director
or officer, whether or not then in office (and such person's heirs, executors,
and administrators), against reasonable costs and expenses incurred in
connection with any action, suit or proceeding to which such person may be made
a party by reason of such person's being or having been a director or officer,
except in relation to any actions, suits, or proceedings in which such person
has been adjudged liable because of willful malfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
person's office. The bylaws further provide that such rights and indemnification
shall not be exclusive of any other rights to which the officers and directors
may be entitled according to law.
Section 302A.521 of the Minnesota Business Corporation Act provides that a
corporation shall indemnify any person made or threatened to be made a party to
a proceeding by reason of acts or omissions performed in their official capacity
as an officer, director, employee or agent of the corporation against
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judgments, penalties, fines, including without limitation, excise taxes
assessed against such person with respect to an employee benefit plan,
settlements, and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding if,
with respect to the acts or omissions of such person complained of in the
proceeding, such person (i) has not been indemnified by another organization
or employee benefit plan for the same expenses with respect to the same acts
or omissions; (ii) acted in good faith; (iii) received no improper personal
benefit and Minnesota Statutes, Section 302A.255 (regarding conflicts of
interest), if applicable, has been satisfied; (iv) in the case of a criminal
proceeding, has no reasonable cause to believe the conduct was unlawful; and
(v) in the case of acts or omissions by persons in their official capacity
for the corporation, reasonably believed that the conduct was in the best
interests of the corporation, or in the case of acts or omissions by persons
in their capacity for other organization, reasonably believed that the
conduct was not opposed to the best interests of the corporation. In
addition, Section 302A.521, subd. 3, of the Minnesota Statutes requires
payment or reimbursement by the corporation, upon written request, of
reasonable expenses (including attorneys' fees) incurred by a person in
advance of the final disposition of a proceeding in certain instances if a
decision as to required indemnification is made by a disinterested majority
of the Board of Directors present at a meeting at which a disinterested
quorum is present, or by a designated committee of the Board, by special
legal counsel, by the shareholders or by a court.
In addition, the Company has entered into indemnification agreements with
each of its directors and officers, which agreements provide for indemnification
to the full extent permitted by Minnesota law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The options that have been granted under the Plan were all granted to
employees, directors and consultants of the Company and were exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933.
ITEM 8. EXHIBITS. (Filed electronically herewith)
EXHIBIT
4.1 1996 Stock Plan
5.1 Opinion of Lindquist & Vennum P.L.L.P
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in
Exhibit 5.1)
23.2 Consent of Grant Thornton L.L.P
24.1 Power of Attorney
(included on signature page)
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) 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 of 1933;
(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 aggregate,
represents a fundamental change in 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 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 connected 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 Act and will be governed by the final adjudication of
such issue.
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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 Chaska, State of Minnesota, on December 19, 1996.
LIFECORE BIOMEDICAL, INC.
By \s\ James W. Bracke
-------------------------------------
James W. Bracke, Ph.D., President and
Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of Lifecore Biomedical, Inc. hereby
constitute and appoint James W. Bracke and Dennis J. Allingham, or either of
them, with power to act one without the other, our true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for us and
in our stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement and all
documents relating thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing necessary or advisable
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
the date and in the capacities indicated.
Signature
- ---------
\s\ James W. Bracke Dated: December 19, 1996
- ------------------------------------------
James W. Bracke, Ph.D., President,
Chief Executive Officer and Secretary
(Principal Executive Officer) and Director
\s\ Dennis J. Allingham Dated: December 19, 1996
- ------------------------------------------
Dennis J. Allingham,
Vice President and Chief
Financial Officer (Principal Financial
Officer)
6
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\s\ Orwin L. Carter Dated: December 19, 1996
- ------------------------------------------
Orwin L. Carter, Ph.D., Director
\s\ Joan L. Gardner Dated: December 19, 1996
- ------------------------------------------
Joan L. Gardner, Director
\s\ Thomas H. Garrett Dated: December 19, 1996
- ------------------------------------------
Thomas H. Garrett, Director
\s\ John C. Heinmiller Dated: December 19, 1996
- ------------------------------------------
John C. Heinmiller, Director
\s\ Donald W. Larson Dated: December 19, 1996
- ------------------------------------------
Donald W. Larson, Director
\s\ Richard W. Perkins Dated: December 19, 1996
- ------------------------------------------
Richard W. Perkins, Director
7
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EXHIBIT 4.1
LIFECORE BIOMEDICAL, INC.
1996 STOCK PLAN
<PAGE>
SECTION CONTENTS PAGE
- ------- -------- ----
1. General Purpose of Plan; Definitions . . . . . . . . . . . . . . . 1
2. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Stock Subject to Plan. . . . . . . . . . . . . . . . . . . . . . . 4
4. Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Stock Options. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Stock Appreciation Rights. . . . . . . . . . . . . . . . . . . . . 7
7. Restricted Stock . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. Deferred Stock Awards. . . . . . . . . . . . . . . . . . . . . . . 9
9. Transfer, Leave of Absence, etc. . . . . . . . . . . . . . . . . .10
10. Amendments and Termination . . . . . . . . . . . . . . . . . . . .10
11. Unfunded Status of Plan. . . . . . . . . . . . . . . . . . . . . .11
12. General Provisions . . . . . . . . . . . . . . . . . . . . . . . .11
<PAGE>
LIFECORE BIOMEDICAL, INC.
1996 STOCK PLAN
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this plan is the Lifecore Biomedical, Inc. 1996 Stock Plan
(the "Plan"). The purpose of the Plan is to enable Lifecore Biomedical, Inc.
(the "Company") to retain and attract executives and other key employees,
non-employee directors and consultants who contribute to the Company's
success by their ability, ingenuity and industry, and to enable such
individuals to participate in the long-term success and growth of the Company
by giving them a proprietary interest in the Company.
For purposes of the Plan, the following terms shall be defined as set
forth below:
a. "BOARD" means the Board of Directors of the Company as it may be
comprised from time to time.
b. "CAUSE" means a felony conviction of a participant or the failure
of a participant to contest prosecution for a felony, willful misconduct,
dishonesty or intentional violation of a statute, rule or regulation, any of
which, in the judgment of the Company, is harmful to the business or
reputation of the Company.
c. "CODE" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute.
d. "COMMITTEE" means the Committee referred to in Section 2 of the
Plan. If at any time no Committee shall be in office, then the functions of
the Committee specified in the Plan shall be exercised by the Board, unless
the Plan specifically states otherwise.
e. "CONSULTANT" means any person, including an advisor, engaged by
the Company or a Parent of the Subsidiary of the Company to render services
and who is compensated for such services and who is not an employee of the
Company or any Parent Corporation or Subsidiary of the Company. A
Non-Employee Director may serve as a Consultant.
f. "COMPANY" means Lifecore Biomedical, Inc., a corporation
organized under the laws of the State of Minnesota (or any successor
corporation).
g. "DEFERRED STOCK" means an award made pursuant to Section 8 below
of the right to receive stock at the end of a specified deferral period.
h. "DISABILITY" means permanent and total disability as determined
by the Committee.
i. "EARLY RETIREMENT" means retirement, with consent of the
Committee at the time of retirement, from active employment with the Company
and any Subsidiary or Parent Corporation of the Company.
j. "FAIR MARKET VALUE" of Stock on any given date shall be
determined by the Committee as follows: (a) if the Stock is listed for
trading on one of more national securities exchanges, or is traded on the
NASDAQ Stock Market, the last reported sales price on the principal such
exchange or the NASDAQ Stock Market on the date in question, or if such Stock
shall not have been traded on such principal exchange on such date, the last
reported sales price on such principal exchange or the NASDAQ Stock Market on
the
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first day prior thereto on which such Stock was so traded; or (b) if the
Stock is not listed for trading on a national securities exchange or the
NASDAQ Stock Market, but is traded in the over-the-counter market, including
the NASDAQ Small Cap Market, the closing bid price for such Stock on the date
in question, or if there is no such bid price for such Stock on such date,
the closing bid price on the first day prior thereto on which such price
existed; or (c) if neither (a) or (b) is applicable, by any means fair and
reasonable by the Committee, which determination shall be final and binding
on all parties.
k. "INCENTIVE STOCK OPTION" means any Stock Option intended to be
and designated as an "Incentive Stock Option" within the meaning of Section
422 of the Code.
l. "NON-EMPLOYEE DIRECTOR" means a "Non-Employee Director" within
the meaning of Rule 16b-3(b)(3) under the Securities Exchange Act of 1934.
m. "NON-QUALIFIED STOCK OPTION" means any Stock Option that is not
an Incentive Stock Option, and is intended to be and is designated as a
"Non-Qualified Stock Option."
n. "NORMAL RETIREMENT" means retirement from active employment with
the Company and any Subsidiary or Parent Corporation of the Company on or
after age 65.
o. "OUTSIDE DIRECTOR" means a Director who: (a) is not a current
employee of the Company or any member of an affiliated group which includes
the Company; (b) is not a former employee of the Company who receives
compensation for prior services (other than benefits under a tax-qualified
retirement plan) during the taxable year; (c) has not been an officer of the
Company; (d) does not receive remuneration from the Company, either directly
or indirectly, in any capacity other than as a director, except as otherwise
permitted under Code Section 162(m) and regulations thereunder. For this
purpose, remuneration includes any payment in exchange for good or services.
This definition shall be further governed by the provisions of Code Section
162(m) and regulations promulgated thereunder.
p. "PARENT CORPORATION" 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 the chain.
q. "RESTRICTED STOCK" means an award of shares of Stock that are
subject to restrictions under Section 7 below.
r. "RETIREMENT" means Normal Retirement or Early Retirement.
s. "STOCK" means the Common Stock of the Company.
t. "STOCK APPRECIATION RIGHT" means the right pursuant to an award
granted under Section 6 below to surrender to the Company all or a portion of
a Stock Option in exchange for an amount equal to the difference between (i)
Fair Market Value, as of the date such Stock Option or such portion thereof
is surrendered, of the shares of Stock covered by such Stock Option or such
portion thereof, and (ii) the aggregate exercise price of such Stock Option
or such portion thereof.
u. "STOCK OPTION" means any option to purchase shares of Stock
granted pursuant to Section 5 below.
v. "SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the
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unbroken chain) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in the
chain.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board of Directors or by a
Committee appointed by the Board of Directors of the Company consisting of at
least two Directors, all of whom shall be Outside Directors and Non-Employee
Directors, who shall serve at the pleasure of the Board.
The Committee shall have the power and authority to grant to eligible
employees or Consultants, pursuant to the terms of the Plan: (i) Stock
Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, or (iv)
Deferred Stock awards.
In particular, the Committee shall have the authority:
(i) to select the officers and other key employees of the Company and
its Subsidiaries and other eligible persons to whom Stock Options, Stock
Appreciation Rights, Restricted Stock and Deferred Stock awards may from time
to time be granted hereunder;
(ii) to determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock and
Deferred Stock awards, or a combination of the foregoing, are to be granted
hereunder;
(iii) to determine the number of shares to be covered by each such
award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but not limited
to, any restriction on any Stock Option or other award and/or the shares of
Stock relating thereto), which authority shall be exclusively vested in the
Committee (and not the Board) for purposes of establishing performance
criteria used with Restricted Stock and Deferred Stock awards; provided,
however, that in the event of a merger or asset sale, the applicable
provisions of Sections 5(c) and 7(c) of the Plan shall govern the
acceleration of the vesting of any Stock Option or awards;
(v) to determine whether, to what extent and under what circumstances
Stock and other amounts payable with respect to an award under this Plan
shall be deferred either automatically or at the election of the participant.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it
shall, from time to time, deem advisable; to interpret the terms and
provisions of the Plan and any award issued under the Plan (and any
agreements relating thereto); and to otherwise supervise the administration
of the Plan. The Committee may delegate to executive officers of the Company
the authority to exercise the powers specified in (i), (ii), (iii), (iv) and
(v) above with respect to persons who are not either the chief executive
officer of the Company or the four highest paid officers of the Company other
than the chief executive officer.
All decisions made by the Committee pursuant to the provisions of the
Plan shall be final and binding on all persons, including the Company and
Plan participants.
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SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for
distribution under the Plan shall be 3,000,000. Such shares may consist, in
whole or in part, of authorized and unissued shares.
Subject to paragraph (b)(iv) of Section 6 below, if any shares that have
been optioned cease to be subject to Stock Options, or if any shares subject
to any Restricted Stock or Deferred Stock award granted hereunder are
forfeited or such award otherwise terminates without a payment being made to
the participant, such shares shall again be available for distribution in
connection with future awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, other change in corporate structure
affecting the Stock, or spin-off or other distribution of assets to
shareholders, such substitution or adjustment shall be made in the aggregate
number of shares reserved for issuance under the Plan, in the number and
option price of shares subject to outstanding options granted under the Plan,
and in the number of shares subject to Restricted Stock or Deferred Stock
awards granted under the Plan as may be determined to be appropriate by the
Committee, in its sole discretion, provided that the number of shares subject
to any award shall always be a whole number. Such adjusted option price
shall also be used to determine the amount payable by the Company upon the
exercise of any Stock Appreciation Right associated with any Option.
SECTION 4. ELIGIBILITY.
Officers, other key employees of the Company and Subsidiaries, members
of the Board of Directors, and Consultants who are responsible for or
contribute to the management, growth and profitability of the business of the
Company and its Subsidiaries are eligible to be granted Stock Options, Stock
Appreciation Rights, Restricted Stock or Deferred Stock awards under the
Plan. The optionees and participants under the Plan shall be selected from
time to time by the Committee, in its sole discretion, from among those
eligible, and the Committee shall determine, in its sole discretion, the
number of shares covered by each award.
Notwithstanding the foregoing, no person shall receive grants of Stock
Options and Stock Appreciation Rights under this Plan which exceed 600,000
shares during any fiscal year of the Company.
SECTION 5. STOCK OPTIONS.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
The Stock Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Non-Qualified Stock Options. No Incentive
Stock Options shall be granted under the Plan after September 19, 2006.
The Committee shall have the authority to grant any optionee Incentive
Stock Options, Non-Qualified Stock Options, or both types of options (in each
case with or without Stock Appreciation Rights). To the extent that any
option does not qualify as an Incentive Stock Option, it shall constitute a
separate Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify either the Plan or any Incentive Stock Option
under Section 422 of the Code. The preceding sentence shall not preclude any
modification or amendment to an outstanding Incentive Stock Option, whether
or not such modification or amendment results in disqualification of such
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Stock Option as an Incentive Stock Option, provided the optionee consents in
writing to the modification or amendment.
Options granted under the Plan shall be subject to the following terms
and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem
desirable.
(a) OPTION PRICE. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Committee at the time of
grant. In no event shall the option price per share of Stock purchasable
under an Incentive Stock Option be less than 100% of Fair Market Value on
the date the option is granted. If an employee owns or is deemed to own (by
reason of the attribution rules applicable under Section 424(d) of the Code)
more than 10% of the combined voting power of all classes of stock of the
Company or any Parent Corporation or Subsidiary and an Incentive Stock Option
is granted to such employee, the option price shall be no less than 110% of
the Fair Market Value of the Stock on the date the option is granted.
(b) OPTION TERM. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten
years after the date the option is granted. If an employee owns or is deemed
to own (by reason of the attribution rules of Section 424(d) of the Code)
more than 10% of the combined voting power of all classes of stock of the
Company or any Parent Corporation or Subsidiary and an Incentive Stock Option
is granted to such employee, the term of such option shall be no more than
five years from the date of grant.
(c) EXERCISABILITY. Stock Options shall be exercisable at such time
or times as determined by the Committee at or after grant, subject to the
restrictions stated in Section 5(b) above. If the Committee provides, in its
discretion, that any option is exercisable only in installments, the
Committee may waive such installment exercise provisions at any time.
Notwithstanding anything contained in the Plan to the contrary, the Committee
may, in its discretion, extend or vary the term of any Stock Option or any
installment thereof, whether or not the optionee is then employed by the
Company, if such action is deemed to be in the best interests of the Company;
provided, however, that in the event of a merger or sale of assets, the
provisions of this Section 5(c) shall govern vesting acceleration.
Notwithstanding the foregoing, unless the Stock Option provides otherwise,
any Stock Option granted under this Plan shall be exercisable in full,
without regard to any installment exercise provisions, for a period specified
by the Committee, but not to exceed sixty (60) days, prior to the occurrence
of any of the following events: (i) dissolution or liquidation of the
Company other than in conjunction with a bankruptcy of the Company or any
similar occurrence, (ii) any merger, consolidation, acquisition, separation,
reorganization, or similar occurrence, where the Company will not be the
surviving entity or (iii) the transfer of substantially all of the assets of
the Company or 75% or more of the outstanding Stock of the Company.
The grant of an option pursuant to the Plan shall not limit in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge,
exchange or consolidate or to dissolve, liquidate, sell or transfer all or
any part of its business or assets.
(d) METHOD OF EXERCISE. Stock Options may be exercised in whole or
in part at any time during the option period by giving written notice of
exercise to the Company specifying the number of shares to be purchased.
Such notice shall be accompanied by payment in full of the purchase price,
either by check, or by any other form of legal consideration deemed
sufficient by the Committee and consistent with the Plan's purpose and
applicable law, including promissory notes or a properly executed exercise
notice together with irrevocable instructions to a broker acceptable to the
Company to promptly deliver to the Company the amount of sale or loan
proceeds to pay the exercise price. As determined by the Committee at the
time of grant or exercise, in its sole discretion, payment in full or in part
may also be made in the form of Stock already owned by the optionee (which in
the case of Stock acquired upon exercise of an option have been owned for
more than six months on the date
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of surrender) or, in the case of the exercise of a Non-Qualified Stock
Option, Restricted Stock or Deferred Stock subject to an award hereunder
(based, in each case, on the Fair Market Value of the Stock on the date the
option is exercised, as determined by the Committee), provided, however,
that, in the case of an Incentive Stock Option, the right to make a payment
in the form of already owned shares may be authorized only at the time the
option is granted, and provided further that in the event payment is made in
the form of shares of Restricted Stock or a Deferred Stock award, the
optionee will receive a portion of the option shares in the form of, and in
an amount equal to, the Restricted Stock or Deferred Stock award tendered as
payment by the optionee. If the terms of an option so permit, an optionee
may elect to pay all or part of the option exercise price by having the
Company withhold from the shares of Stock that would otherwise be issued upon
exercise that number of shares of Stock having a Fair Market Value equal to
the aggregate option exercise price for the shares with respect to which such
election is made. No shares of Stock shall be issued until full payment
therefor has been made. An optionee shall generally have the rights to
dividends and other rights of a shareholder with respect to shares subject to
the option when the optionee has given written notice of exercise, has paid
in full for such shares, and, if requested, has given the representation
described in paragraph (a) of Section 12.
(e) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
(f) TERMINATION BY DEATH. If an optionee's employment by the Company
and any Subsidiary or Parent Corporation terminates by reason of death, any
Incentive Stock Option may thereafter be immediately exercised, to the extent
then exercisable, by the legal representative of the estate or by the legatee
of the optionee under the will of the optionee, for a period of twelve months
from the date of such death or until the expiration of the stated term of the
option, whichever period is shorter. In the event of termination of
employment by reason of death, if any Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of Section 422 of
the Code, the option will thereafter be treated as a Non-Qualified Stock
Option.
(g) TERMINATION BY REASON OF DISABILITY. If an optionee's employment
by the Company and any Subsidiary or Parent Corporation terminates by reason
of Disability, any Incentive Stock Option held by such optionee may
thereafter be exercised, to the extent it was exercisable at the time of
termination due to Disability, but may not be exercised after twelve months
from the date of such termination of employment or the expiration of the
stated term of the option, whichever period is the shorter. In the event of
termination of employment by reason of Disability, if any Stock Option is
exercised after the expiration of the exercise periods that apply for
purposes of Section 422 of the Code, the option will thereafter be treated as
a Non-Qualified Stock Option.
(h) TERMINATION BY REASON OF RETIREMENT. If an optionee's employment
by the Company and any Subsidiary or Parent Corporation terminates by reason
of Retirement and the terms of the Stock Option so provide, any Incentive
Stock Option held by such optionee may thereafter be exercised to the extent
it was exercisable at the time of such Retirement, but may not be exercised
after twelve months from the date of such termination of employment or the
expiration of the stated term of the option, whichever period is the shorter.
In the event of termination of employment by reason of Retirement, if any
Stock Option is exercised after the expiration of the exercise periods that
apply for purposes of Section 422 of the Code, the option will thereafter be
treated as a Non-Qualified Stock Option.
(i) OTHER TERMINATION. If an optionee's continuous status as an
employee or Consultant terminates (other than upon the optionee's death ,
Disability or Retirement), any Incentive Stock Option held by such optionee
may thereafter be exercised to the extent it was exercisable at the time of
such termination, but may not be exercised after 90 days after such
termination, or the expiration of the stated term of the option, whichever
period is the shorter. In the event of termination of employment by reason
other than death, Disability or Retirement and if pursuant to its terms any
Stock Option is exercised after the expiration of the exercise periods that
apply for purposes of Section 422 of the Code, the option will thereafter be
treated as a Non-Qualified Stock
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Option. In the event an Optionee's employment with the Company is terminated
for Cause, all unexercised Options granted to such Optionee shall immediately
terminate.
(j) ANNUAL LIMIT ON INCENTIVE STOCK OPTIONS. The aggregate Fair
Market Value (determined as of the time the Stock Option is granted) of the
Common Stock with respect to which an Incentive Stock Option under this Plan
or any other plan of the Company and any Subsidiary or Parent Corporation is
exercisable for the first time by an optionee during any calendar year shall
not exceed $100,000.
(k) DIRECTORS WHO ARE NOT EMPLOYEES. Each person who (i) is not an
employee of the Company, any Parent Corporation or any Subsidiary and (ii) is
elected or re-elected as a Director by the Board or the shareholders
subsequent to September 19, 1996, shall automatically be granted an Option to
purchase 30,000 shares of Stock as of the date of such election or
re-election, at an option price per share equal to 100% of the Fair Market
Value of a share of Stock on the date of such election or re-election. The
Board in appropriate circumstances may adjust the Option to be granted under
this Section 5(k) to any such person who has received a stock option from the
Company in the three preceding years. All such Options shall be designated
as Non-Qualified Stock Options and shall be subject to the same terms and
provisions as are then in effect with respect to the grant of Non-Qualified
Stock Options to officers and key employees of the Company, except that (1)
the term of each such Option shall be equal to ten years, which term shall
not expire upon the termination of service as a Director and (2) the Option
shall become exercisable as to one-third of the shares subject to the Option
beginning one year after the date the Option is granted, the second third
beginning two years after the date the Option is granted and the last third
beginning three years after the date the Option is granted. Upon termination
of such Director's service as a Director of the Company, the unvested portion
of an Option held by such Director shall not be exercisable. Subject to the
foregoing, all provisions of this Plan not inconsistent with the foregoing
shall apply to Options granted pursuant to this Section 5(k).
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) GRANT AND EXERCISE. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option granted under the Plan. In
the case of a Non-Qualified Stock Option, such rights may be granted either
at or after the time of the grant of such Option. In the case of an
Incentive Stock Option, such rights may be granted only at the time of the
grant of the option.
A Stock Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option, except that a
Stock Appreciation Right granted with respect to less than the full number of
shares covered by a related Stock Option shall not be reduced until the
exercise or termination of the related Stock Option exceeds the number of
shares not covered by the Stock Appreciation Right.
A Stock Appreciation Right may be exercised by an optionee, in
accordance with paragraph (b) of this Section 6, by surrendering the
applicable portion of the related Stock Option. Upon such exercise and
surrender, the optionee shall be entitled to receive an amount determined in
the manner prescribed in paragraph (b) of this Section 6. Stock Options
which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the related Stock Appreciation Rights have been
exercised.
(b) TERMS AND CONDITIONS. Stock Appreciation Rights shall be subject
to such terms and conditions, not inconsistent with the provisions of the
Plan, as shall be determined from time to time by the Committee, including
the following:
(i) Stock Appreciation Rights shall be exercisable only at such time
or times and to the extent that the Stock Options to which they relate shall
be exercisable in accordance with the provisions of Section 5 and this
Section 6 of the Plan.
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(ii) Upon the exercise of a Stock Appreciation Right, an optionee shall
be entitled to receive up to, but not more than, an amount in cash or shares of
Stock equal in value to the excess of the Fair Market Value of one share of
Stock over the option price per share specified in the related option multiplied
by the number of shares in respect of which the Stock Appreciation Right shall
have been exercised, with the Committee having the right to determine the form
of payment.
(iii) Stock Appreciation Rights shall be transferable only when and to
the extent that the underlying Stock Option would be transferable under
Section 5 of the Plan.
(iv) Upon the exercise of a Stock Appreciation Right, the Stock Option
or part thereof to which such Stock Appreciation Right is related shall be
deemed to have been exercised for the purpose of the limitation set forth
in Sections 3 and 4 of the Plan on the total number of shares of Stock to
be issued under the Plan and the maximum number of shares to be awarded to
any one person in a fiscal year, but only to the extent of the number of
shares issued or issuable under the Stock Appreciation Right at the time of
exercise based on the value of the Stock Appreciation Right at such time.
(v) A Stock Appreciation Right granted in connection with an Incentive
Stock Option may be exercised only if and when the market price of the
Stock subject to the Incentive Stock Option exceeds the exercise price of
such Option.
SECTION 7. RESTRICTED STOCK.
(a) ADMINISTRATION. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The Committee
shall determine the officers, key employees and Consultants of the Company and
Subsidiaries to whom, and the time or times at which, grants of Restricted Stock
will be made, the number of shares to be awarded, the time or times within which
such awards may be subject to forfeiture, and all other conditions of the
awards. The Committee may also condition the grant of Restricted Stock upon the
attainment of specified performance goals. The provisions of Restricted Stock
awards need not be the same with respect to each recipient.
(b) AWARDS AND CERTIFICATES. The prospective recipient of an award of
shares of Restricted Stock shall not have any rights with respect to such award,
unless and until such recipient has executed an agreement evidencing the award
and has delivered a fully executed copy thereof to the Company, and has
otherwise complied with the then applicable terms and conditions.
(i) Each participant shall be issued a stock certificate in respect of
shares of Restricted Stock awarded under the Plan. Such certificate shall
be registered in the name of the participant, and shall bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to
such award, substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) of the Lifecore Biomedical, Inc. 1996 Stock
Plan and an Agreement entered into between the registered owner and
Lifecore Biomedical, Inc. Copies of such Plan and Agreement are on
file in the offices of Lifecore Biomedical, Inc., 3515 Lyman
Boulevard, Chaska, MN 55318."
(ii) The Committee shall require that the stock certificates evidencing
such shares be held in custody by the Company until the restrictions
thereon shall have lapsed, and that, as a condition of any Restricted Stock
award, the participant shall have delivered a stock power, endorsed in
blank, relating to the Stock covered by such award.
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(c) RESTRICTIONS AND CONDITIONS. The shares of Restricted Stock
awarded pursuant to the Plan shall be subject to the following restrictions and
conditions:
(i) Subject to the provisions of this Plan and the award agreement,
during a period set by the Committee commencing with the date of such award
(the "Restriction Period"), the participant shall not be permitted to sell,
transfer, pledge or assign shares of Restricted Stock awarded under the
Plan. Within these limits, the Committee may provide for the lapse of such
restrictions in installments where deemed appropriate.
(ii) Except as provided in paragraph (c)(i) of this Section 7, the
participant shall have, with respect to the shares of Restricted Stock, all
of the rights of a shareholder of the Company, including the right to vote
the shares and the right to receive any cash dividends. The Committee, in
its sole discretion, may permit or require the payment of cash dividends to
be deferred and, if the Committee so determines, reinvested in additional
shares of Restricted Stock (to the extent shares are available under
Section 3 and subject to paragraph (f) of Section 12). Certificates for
shares of unrestricted Stock shall be delivered to the grantee promptly
after, and only after, the period of forfeiture shall have expired without
forfeiture in respect of such shares of Restricted Stock.
(iii) Subject to the provisions of the award agreement and paragraph
(c)(iv) of this Section 7, upon termination of employment for any reason
during the Restriction Period, all shares still subject to restriction
shall be forfeited by the participant.
(iv) In the event of special hardship circumstances of a participant
whose employment is terminated (other than for Cause), including death,
Disability or Retirement, or in the event of an unforeseeable emergency of
a participant still in service, the Committee may, in its sole discretion,
when it finds that a waiver would be in the best interest of the Company,
waive in whole or in part any or all remaining restrictions with respect to
such participant's shares of Restricted Stock.
(v) Notwithstanding the foregoing, all restrictions with respect to any
participant's shares of Restricted Stock shall lapse, on the date
determined by the Committee, prior to, but in no event more than sixty (60)
days prior to, the occurrence of any of the following events: (i)
dissolution or liquidation of the Company, other than in conjunction with a
bankruptcy of the Company or any similar occurrence, (ii) any merger,
consolidation, acquisition, separation, reorganization, or similar
occurrence, where the Company will not be the surviving entity or (iii) the
transfer of substantially all of the assets of the Company or 75% or more
of the outstanding Stock of the Company.
SECTION 8. DEFERRED STOCK AWARDS.
(a) ADMINISTRATION. Deferred Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the officers, key employees and Consultants of the Company and Subsidiaries to
whom and the time or times at which Deferred Stock shall be awarded, the number
of Shares of Deferred Stock to be awarded to any participant or group of
participants, the duration of the period (the "Deferral Period") during which,
and the conditions under which, receipt of the Stock will be deferred, and the
terms and conditions of the award in addition to those contained in paragraph
(b) of this Section 8. The Committee may also condition the grant of Deferred
Stock upon the attainment of specified performance goals. The provisions of
Deferred Stock awards need not be the same with respect to each recipient.
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(b) TERMS AND CONDITIONS.
(i) Subject to the provisions of this Plan and the award agreement,
Deferred Stock awards may not be sold, assigned, transferred, pledged or
otherwise encumbered during the Deferral Period. At the expiration of the
Deferral Period (or Elective Deferral Period, where applicable), share
certificates shall be delivered to the participant, or his legal
representative, in a number equal to the shares covered by the Deferred
Stock award.
(ii) Amounts equal to any dividends declared during the Deferral Period
with respect to the number of shares covered by a Deferred Stock award will
be paid to the participant currently or deferred and deemed to be
reinvested in additional Deferred Stock or otherwise reinvested, all as
determined at the time of the award by the Committee, in its sole
discretion.
(iii) Subject to the provisions of the award agreement and paragraph
(b)(iv) of this Section 8, upon termination of employment for any reason
during the Deferral Period for a given award, the Deferred Stock in
question shall be forfeited by the participant.
(iv) In the event of special hardship circumstances of a participant
whose employment is terminated (other than for Cause) including death,
Disability or Retirement, or in the event of an unforeseeable emergency of
a participant still in service, the Committee may, in its sole discretion,
when it finds that a waiver would be in the best interest of the Company,
waive in whole or in part any or all of the remaining deferral limitations
imposed hereunder with respect to any or all of the participant's Deferred
Stock.
(v) A participant may elect to further defer receipt of the award for a
specified period or until a specified event (the "Elective Deferral
Period"), subject in each case to the Committee's approval and to such
terms as are determined by the Committee, all in its sole discretion.
Subject to any exceptions adopted by the Committee, such election must
generally be made prior to completion of one half of the Deferral Period
for a Deferred Stock award (or for an installment of such an award).
(vi) Each award shall be confirmed by, and subject to the terms of, a
Deferred Stock agreement executed by the Company and the participant.
SECTION 9. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer of an employee from the Company to a Parent Corporation
or Subsidiary, or from a Parent Corporation or Subsidiary to the Company, or
from one Subsidiary to another;
(b) a leave of absence, approved in writing by the Committee, for
military service or sickness, or for any other purpose approved by the Company
if the period of such leave does not exceed ninety (90) days (or such longer
period as the Committee may approve, in its sole discretion); and
(c) a leave of absence in excess of ninety (90) days, approved in
writing by the Committee, but only if the employee's right to reemployment is
guaranteed either by a statute or by contract, and provided that, in the case of
any leave of absence, the employee returns to work within 30 days after the end
of such leave.
SECTION 10. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made (i) which would impair the rights
of an optionee or participant under a Stock Option, Restricted Stock
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or other Stock-based award theretofore granted, without the optionee's or
participant's consent, or (ii) which without the approval of the stockholders
of the Company would cause the Plan to no longer comply with Rule 16b-3 under
the Securities Exchange Act of 1934, Section 422 of the Code or any other
regulatory requirements.
The Committee may amend the terms of any award or option theretofore
granted, prospectively or retroactively to the extent such amendment is
consistent with the terms of this Plan, but no such amendment shall impair the
rights of any holder without his or her consent except to the extent authorized
under the Plan. The Committee may also substitute new Stock Options for
previously granted options, including previously granted options having higher
option prices.
SECTION 11. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize
the creation of trusts or other arrangements to meet the obligations created
under the Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder, provided, however, that the existence of such trusts or other
arrangements is consistent with the unfunded status of the Plan.
SECTION 12. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing shares pursuant to
a Stock Option under the Plan to represent to and agree with the Company in
writing that the optionee is acquiring the shares without a view to distribution
thereof. The certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Stock delivered under the Plan pursuant to
any Restricted Stock, Deferred Stock or other Stock-based awards shall be
subject to such stock-transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Stock is
then listed, and any applicable Federal or state securities laws, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
(b) Subject to paragraph (d) below, recipients of Restricted Stock,
Deferred Stock and other Stock-based awards under the Plan (other than Stock
Options) are not required to make any payment or provide consideration other
than the rendering of services.
(c) Nothing contained in this Plan shall prevent the Board of Directors
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases. The adoption
of the Plan shall not confer upon any employee of the Company or any Subsidiary
any right to continued employment with the Company or a Subsidiary, as the case
may be, nor shall it interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of any of its employees at any time.
(d) Each participant shall, no later than the date as of which any part
of the value of an award first becomes includible as compensation in the gross
income of the participant for Federal income tax purposes, pay to the Company,
or make arrangements satisfactory to the Committee regarding payment of, any
Federal, state, or local taxes of any kind required by law to be withheld with
respect to the award. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements and the Company and Subsidiaries
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of
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any kind otherwise due to the participant. With respect to any award under
the Plan, if the terms of such award so permit, a participant may elect by
written notice to the Company to satisfy part or all of the withholding tax
requirements associated with the award by (i) authorizing the Company to
retain from the number of shares of Stock that would otherwise be deliverable
to the participant, or (ii) delivering to the Company from shares of Stock
already owned by the participant, that number of shares having an aggregate
Fair Market Value equal to part or all of the tax payable by the participant
under this Section 12(d). Any such election shall be in accordance with, and
subject to, applicable tax and securities laws, regulations and rulings.
(e) At the time of grant, the Committee may provide in connection with
any grant made under this Plan that the shares of Stock received as a result of
such grant shall be subject to a repurchase right in favor of the Company,
pursuant to which the participant shall be required to offer to the Company upon
termination of employment for any reason any shares that the participant
acquired under the Plan, with the price being the then Fair Market Value of the
Stock or, in the case of a termination for Cause, an amount equal to the cash
consideration paid for the Stock, subject to such other terms and conditions as
the Committee may specify at the time of grant. The Committee may, at the time
of the grant of an award under the Plan, provide the Company with the right to
repurchase, or require the forfeiture of, shares of Stock acquired pursuant to
the Plan by any participant who, at any time within two years after termination
of employment with the Company, directly or indirectly competes with, or is
employed by a competitor of, the Company.
(f) The reinvestment of dividends in additional Restricted Stock (or in
Deferred Stock or other types of Plan awards) at the time of any dividend
payment shall only be permissible if the Committee (or the Company's chief
financial officer) certifies in writing that under Section 3 sufficient shares
are available for such reinvestment (taking into account then outstanding Stock
Options and other Plan awards).
(g) The Plan is expressly made subject to the approval by shareholders
of the Company. If the Plan is not so approved by the shareholders on or before
one year after this Plan's adoption by the Board of Directors, this Plan shall
not come into effect. The offering of the shares hereunder shall be also
subject to the effecting by the Company of any registration or qualification of
the shares under any federal or state law or the obtaining of the consent or
approval of any governmental regulatory body which the Company shall determine,
in its sole discretion, is necessary or desirable as a condition to or in
connection with, the offering or the issue or purchase of the shares covered
thereby. The Company shall make every reasonable effort to effect such
registration or qualification or to obtain such consent or approval.
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(Letterhead)
EXHIBIT 5.1
December 20, 1996
Lifecore Biomedical, Inc.
3515 Lyman Boulevard
Chaska, MN 55318
RE: OPINION OF COUNSEL AS TO LEGALITY OF 3,000,000 SHARES OF COMMON STOCK
TO BE REGISTERED UNDER THE SECURITIES ACT OF 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 3,000,000 shares of Common Stock, $.01 par
value per share, of Lifecore Biomedical, Inc. (the "Company") offered to key
employees, directors and consultants pursuant to the Lifecore Biomedical, Inc.
1996 Stock Plan (the "Plan").
As general counsel for the Company, we advise you that it is our opinion,
based on our familiarity with the affairs of the Company and upon our
examination of pertinent documents, that the 3,000,000 shares of Common Stock to
be offered to employees, directors and consultants by the Company under the Plan
will, when paid for and issued, be validly issued and lawfully outstanding,
fully paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
with respect to said shares of Common Stock under the Securities Act of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated July 31, 1996 accompanying the consolidated
financial statements and schedule of Lifecore Biomedical, Inc. and
Subsidiaries appearing in the 1996 Annual Report of the Company to its
shareholders included in the Annual Report on Form 10-K for the year ended
June 30, 1996 which is incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Registration
Statement of the aforementioned report.
GRANT THORNTON LLP
Minneapolis, Minnesota
December 9, 1996
