EXHIBIT 2
STOCK SALE PLAN
This Stock Sale Plan (this "Plan") is entered into this 17th day of
January, 2002 between Vertical Fund I, L.P. and Vertical Fund II, L.P. (the
"Participant") and U.S. Bancorp Xxxxx Xxxxxxx Inc. (the "Broker").
RECITALS
The Participant desires to establish this Plan to systematically sell
shares of common stock (the "Stock") of Lifecore Biomedical, Inc. (the
"Issuer").
The Participant desires to engage the Broker to effect sales of shares of
the Stock in accordance with this Plan.
The Stock is principally traded on the NASD (the "Exchange").
AGREEMENT
Therefore, the Participant and the Broker hereby agree as follows:
1. The Broker shall effect a sale (each a "Planned Transaction"),
commencing _______________________ of (check one):
|_|(_______) shares of Stock at prevailing market prices, [on the ________ day]
of each month, or the next trading day if any such specified day is not a
trading day,] [each day] on which the Exchange is open and the stock trades
regular way trading;
|_|(________) shares of Stock, at a price of $ _______ per share or better, [on]
the ________ day of each month, or the next trading day if any such specified
day is not a trading day,] [each day] on which the Exchange is open and the
stock trades regular way trading; or
|X|Other (complete) BROKER SHALL SELL SUCH SHARES AS, IN ITS DISCRETION, IT MAY
DETERMINE TO BE APPROPRIATE IN LIGHT OF MARKET CONDITIONS, AT A MINIMUM PRICE
PER SHARE OF $20, WITHOUT INFLUENCE OR INSTRUCTION BY THE UNDERSIGNED.
2. This Plan shall become effective on the date hereof and shall terminate
on the earliest to occur of (check as many as apply):
|_| the termination of the Participant's position as a (director)
(officer) of the Issuer;
|_| aggregate sale proceeds of $________ having been received;
|X| 500,000 shares of Stock having been sold;
|_| ______________, 20____; or
|_| the death of the Participant.
Notwithstanding the foregoing provisions of this Paragraph 2, the Participant
may terminate this Plan at any time by providing written notice of termination
prior to the requested date of termination.
3. The Participant understands that if the Broker is not able to effect
part or all of a Planned Transaction consistent with ordinary principles of best
execution or due to a market disruption or a legal, regulatory, or contractual
restriction applicable to the Broker, the Broker shall effect such Planned
Transaction, or part thereof, as promptly as practical consistent with ordinary
principles of best execution and after the cessation or termination of any such
market disruption, applicable restriction, or other event, provided that no such
Planned Transaction shall be effected after the termination of this Plan.
4. The Participant represents and warrants that he or she:
(a) is not currently aware of any material nonpublic information
with respect to the Issuer or any securities of the Issuer (including the
Stock);
(b) is not subject to any legal, regulatory, or contractual
restriction or undertaking that would prevent the Broker from conducting
the Planned Transactions in accordance with this Plan;
(c) is entering into this Plan in good faith and not as part of a
plan or scheme to evade the prohibitions of SEC Rule 10b5-1;
(d) owns free and clear of any liens, claims, encumbrances or other
restrictions the shares of Stock to be sold under this Plan subject, in
the case of shares of Stock underlying stock options to be exercised
pursuant to this Plan, only to the compliance by the Participant with the
exercise provisions of such options;
(e) is is not an affiliate of the Issuer for purposes of SEC Rule
144; and
(f) is currently able to purchase and sell shares of Stock in
accordance with the Issuer's insider-trading policies and has obtained the
approval of the Issuer's General Counsel (or other appropriate compliance
officer) to enter into this Plan at this time which approval is evidenced
below by the Issuer's acknowledgement hereof.
5. The Participant shall immediately notify the Broker if the Participant
becomes subject to a legal, regulatory, or contractual restriction or
undertaking that would prevent the Broker from making Planned Transactions under
this Plan, and, in such a case, the Participant and the Broker shall cooperate
to amend or otherwise revise this Plan to take account of the restriction or
undertaking (but neither party shall be obligated to take any action that would
be inconsistent with SEC Rule 10b5-1(c)).
6. It is the parties' intent that this Plan comply with the requirements
of SEC Rule 10b5-1(c)(1) and this Plan shall be interpreted to comply with the
requirements thereof. Any provision of this Plan that cannot be construed in
accordance with Rule 10b5-1(c) shall be void.
7. If the Participant is an "affiliate" of the Issuer for purposes of SEC
Rule 144, as represented by the Participant above, then the Broker agrees to
conduct all Planned Transactions in accordance with the manner-of-sale
requirement of Rule 144, and in no event shall the Broker effect any such
Planned Transaction if it would exceed the then-applicable volume limitation
under Rule 144, assuming that the sales under this Plan are the only sales
subject to that limitation. The Participant agrees not to take, and agrees to
cause any person or entity with which he or she would be required to aggregate
sales of Stock under paragraph (a)(2) or (e) of Rule 144 not to take, any action
that would cause any such sale not to comply with Rule 144. The Participant will
be responsible for making all required Form 144 filings.
8. The Participant acknowledges that the Issuer may suspend the Planned
Transactions at such times and for such periods as may be advisable to ensure
compliance with, among other things, applicable securities laws and regulations,
rules of the Exchange, or contractual or accounting requirements in connection
with acquisitions or dispositions by the Issuer or the Issuer's purchases or
sales of its securities. Any such suspension shall be communicated to the Broker
in writing by the Issuer's General Counsel or other appropriate compliance
officer and shall contain an acknowledgment that such suspension is being made
in accordance with Rule 10b5-1(c).
9. The Broker agrees not to use any information about the Planned
Transactions in connection with purchases or sales of, or trading in, any
securities of the Issuer, or derivative securities thereof, or provide other
people with such information or recommend that other people buy or sell
securities based upon such information.
10. The Participant agrees to make, or to assist the Issuer in making, all
filings required under Sections 13(d) and 16 of the Securities Exchange Act of
1934 (E.G., Forms 4 and 5) with respect to the Planned Transactions. The Broker
shall have no responsibility for any such filings.
11. The Participant agrees that the Issuer, in its discretion, may
publicly disclose the existence and terms of this Plan.
12. All share numbers and dollar amounts set forth in this Plan shall
automatically be adjusted to reflect stock splits, stock dividends, and similar
events occurring after the date hereof.
13. The Participant may trade in securities of the Issuer in addition to
the Planned Transaction, provided that the Participant complies with the
insider-trading policies of the Issuer and applicable regulatory requirements
and the Participant does not enter into or alter a corresponding or hedging
transaction or position with respect to the Planned Transactions. The
Participant agrees to promptly notify the Broker of any transaction in the Stock
by the Participant other than a Planned Transaction pursuant to this Plan.
14. This Plan may be amended only by a writing executed by the Participant
and the Broker that is acknowledged by the Issuer. Any such writing shall
contain the Participant's representation that he or she knows of no material
nonpublic information regarding the Issuer or any of its securities (including
the Stock) as of the date thereof.
IN WITNESS WHEREOF, the undersigned have signed this Plan as of the date
first written above.
PARTICIPANT
By: /s/ Xxxx X. Xxxxxxxx
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U.S. BANCORP XXXXX XXXXXXX INC.
By: /s/ G. Xxxxxxx Xxxxxxxx
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Its: Managing Director
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