Attached files
file | filename |
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EX-3.1 - EX-3.1 - Ceres, Inc. | y91150exv3w1.htm |
EX-4.6 - EX-4.6 - Ceres, Inc. | y91150exv4w6.htm |
EX-3.3 - EX-3.3 - Ceres, Inc. | y91150exv3w3.htm |
EX-21.1 - EX-21.1 - Ceres, Inc. | y91150exv21w1.htm |
EX-10.4 - EX-10.4 - Ceres, Inc. | y91150exv10w4.htm |
EX-10.9 - EX-10.9 - Ceres, Inc. | y91150exv10w9.htm |
EX-23.1 - EX-23.1 - Ceres, Inc. | y91150exv23w1.htm |
EX-10.10 - EX-10.10 - Ceres, Inc. | y91150exv10w10.htm |
EX-10.22 - EX-10.22 - Ceres, Inc. | y91150exv10w22.htm |
S-1 - FORM S-1 - Ceres, Inc. | y91150sv1.htm |
EX-10.7 - EX-10.7 - Ceres, Inc. | y91150exv10w7.htm |
Exhibit 10.1
CERES, INC.
2000 STOCK OPTION/STOCK ISSUANCE PLAN,
AS AMENDED AND RESTATED ON AUGUST 4, 2006, REVISED AUGUST 19, 2008
2000 STOCK OPTION/STOCK ISSUANCE PLAN,
AS AMENDED AND RESTATED ON AUGUST 4, 2006, REVISED AUGUST 19, 2008
ARTICLE ONE
GENERAL PROVISIONS
I. | PURPOSE OF THE PLAN |
This 2000 Stock Option/Stock Issuance Plan is intended to promote the interests of Ceres,
Inc., a Delaware corporation, by providing eligible persons with the opportunity to acquire a
proprietary interest, or otherwise increase their proprietary interest, in the Corporation as an
incentive for them to remain in the service of the Corporation.
Capitalized terms herein shall have the meanings assigned to such terms in the attached
Appendix.
II. | STRUCTURE OF THE PLAN |
A. The Plan shall be divided into two (2) separate equity programs:
(i) the Option Grant Program under which eligible persons may, at the discretion of the
Plan Administrator, be granted options to purchase shares of Common Stock, and
(ii) the Stock Issuance Program under which eligible persons may, at the discretion of
the Plan Administrator, be issued shares of Common Stock directly, either through the
immediate purchase of such shares or as a bonus for services rendered the Corporation (or
any Parent or Subsidiary).
B. The provisions of Articles One and Four shall apply to both equity programs under the Plan
and shall accordingly govern the interests of all persons under the Plan.
III. | ADMINISTRATION OF THE PLAN |
A. The Plan shall be administered by the Board. However, any or all administrative functions
otherwise exercisable by the Board may be delegated to the Committee. Members of the Committee
shall serve for such period of time as the Board may determine and shall be subject to removal by
the Board at any time. The Board may also at any time terminate the functions of the Committee and
reassume all powers and authority previously delegated to the Committee.
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B. The Plan Administrator shall have full power and authority (subject to the provisions of
the Plan) to establish such rules and regulations as it may deem appropriate for proper
administration of the Plan and to make such determinations under, and issue such interpretations
of, the Plan and any outstanding options or stock issuances thereunder as it may deem necessary or
advisable. Decisions of the Plan Administrator shall be final and binding on all parties who have
an interest in the Plan or any option or stock issuance thereunder.
IV. | ELIGIBILITY |
A. The persons eligible to participate in the Plan are as follows:
(i) Employees,
(ii) non-employee members of the Board or the non-employee members of the board of
directors of any Parent or Subsidiary, and
(iii) consultants and other independent advisors who provide services to the
Corporation (or any Parent or Subsidiary).
B. The Plan Administrator shall have full authority to determine, (i) with respect to the
option grants under the Option Grant Program, which eligible persons are to receive option grants,
the time or times when such option grants are to be made, the number of shares to be covered by
each such grant, the status of the granted option as either an Incentive Option or a Non-Statutory
Option, the time or times at which each option is to become exercisable, the vesting schedule (if
any) applicable to the option shares and the maximum term for which the option is to remain
outstanding, and (ii) with respect to stock issuances under the Stock Issuance Program, which
eligible persons are to receive stock issuances, the time or times when such issuances are to be
made, the number of shares to be issued to each Participant, the vesting schedule (if any)
applicable to the issued shares and the consideration to be paid by the Participant for such
shares.
C. The Plan Administrator shall have the absolute discretion either to grant options in
accordance with the Option Grant Program or to effect stock issuances in accordance with the Stock
Issuance Program.
V. | STOCK SUBJECT TO THE PLAN |
A. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired
Common Stock. The maximum number of shares of Common Stock which may be issued over the term of
the Plan shall not exceed 11,765,000 shares, as set by the Board of Directors on December 21, 2007.
B. Shares of Common Stock subject to outstanding options shall be available for subsequent
issuance under the Plan to the extent (i) the options expire or terminate for any reason prior to
exercise in full or (ii) the options are cancelled in accordance with the cancellation-regrant
provisions of Article Two. Unvested shares issued under the Plan and
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subsequently repurchased by the Corporation, at the option exercise price paid per share, pursuant
to the Corporations repurchase rights under the Plan shall be added back to the number of shares
of Common Stock reserved for issuance under the Plan and shall accordingly be available for
reissuance through one or more subsequent option grants or direct stock issuances under the Plan.
C. Should any change be made to the Common Stock by reason of any stock split, stock dividend,
merger, recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporations receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number, kind and/or class of securities issuable under
the Plan and (ii) the number, kind and/or class of securities and the exercise price per share in
effect under each outstanding option in order to prevent the dilution or enlargement of benefits
thereunder. The adjustments determined by the Plan Administrator shall be final, binding and
conclusive. In no event shall any adjustments be made in connection with the conversion of one or
more outstanding shares of the Corporations preferred stock into shares of Common Stock.
ARTICLE TWO
OPTION GRANT PROGRAM
I. | OPTION TERMS |
Each option shall be evidenced by one or more documents in the form approved by the Plan
Administrator; provided, however, that each such document shall comply with the
terms specified below. Each document evidencing an Incentive Option shall, in addition, be subject
to the provisions of the Plan applicable to such options.
A. Exercise Price.
1. The exercise price per share shall be fixed by the Plan Administrator in accordance with
the following provisions:
(i) The exercise price per share shall not be less than the Fair Market Value per share
of Common stock on the option grant date.
(ii) If the person to whom the option is granted is a 10% Stockholder, then the
exercise price per share shall not be less than one hundred ten percent (110%) of the Fair
Market Value per share of Common Stock on the option grant date.
2. The exercise price shall become immediately due upon exercise of the option and shall,
subject to the provisions of Section I of Article Four and the documents evidencing the option, be
payable in cash or check made payable to the Corporation. Should the
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Common Stock be registered under Section 12(g) of the 1934 Act at the time the option is exercised,
then the exercise price may also be paid as follows:
(i) in shares of Common Stock held for the requisite period necessary to avoid a charge
to the Corporations earnings for financial reporting purposes and valued at Fair Market
Value on the Exercise Date, or
(ii) to the extent the option is exercised for vested shares, through a special sale
and remittance procedure pursuant to which the Optionee shall concurrently provide
irrevocable written instructions (A) to a Corporation-designated brokerage firm to effect
the immediate sale of the purchased shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds to cover the aggregate exercise
price payable for the purchased shares plus all applicable Federal, state and local income
and employment taxes required to be withheld by the Corporation by reason of such exercise
and (B) to the Corporation to deliver the certificates for the purchased shares directly to
such brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is utilized, payment of the exercise
price for the purchased shares must be made on the Exercise Date.
B. Exercise and Term of Options. Each option shall be exercisable at such time or
times, during such period and for such number of shares as shall be determined by the Plan
Administrator and set forth in the documents evidencing the option grant. However, no option shall
have a term in excess of ten (10) years measured from the option grant date.
C. Effect of Termination of Service.
1. The following provisions shall govern the exercise of any options held by the Optionee at
the time of cessation of Service or death:
(i) Should the Optionee cease to remain in Service for any reason other than Disability
or death, then the Optionee shall have a period of three (3) months following the date of
such cessation of Service during which to exercise each outstanding option held by such
Optionee.
(ii) Should Optionees Service terminate by reason of Disability, then the Optionee
shall have a period of twelve (12) months following the date of such cessation of Service
during which to exercise each outstanding option held by such Optionee.
(iii) If the Optionee dies while holding an outstanding option, then the personal
representative of his or her estate or the person or persons to whom the option is
transferred pursuant to the Optionees will or the laws of inheritance shall have a twelve
(12)-month period following the date of the Optionees death to exercise such option.
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(iv) Under no circumstances, however, shall any such option be exercisable after the
specified expiration of the option term.
(v) During the applicable post-Service exercise period, the option may not be exercised
in the aggregate for more than the number of vested shares for which the option is
exercisable on the date of the Optionees cessation of Service. Upon the expiration of the
applicable exercise period or (if earlier) upon the expiration of the option term, the
option shall terminate and cease to be outstanding for any vested shares for which the
option has not been exercised. However, the option shall, immediately upon the Optionees
cessation of Service, terminate and cease to be outstanding with respect to any and all
option shares for which the option is not otherwise at the time exercisable or in which the
Optionee is not otherwise at that time vested.
2. The Plan Administrator shall have the discretion, exercisable either at the time an option
is granted or at any time while the option remains outstanding, to:
i) extend the period of time for which the option is to remain exercisable following
Optionees cessation of Service or death from the limited period otherwise in effect for
that option to such greater period of time as the Plan Administrator shall deem appropriate,
but in no event beyond the expiration of the option term, and/or
ii) permit the option to be exercised, during the applicable post-Service exercise
period, not only with respect to the number of vested shares of Common Stock for which such
option is exercisable at the time of the Optionees cessation of Service but also with
respect to one or more additional installments in which the Optionee would have vested under
the option had the Optionee continued in Service.
D. Stockholder Rights. The holder of an option shall have no stockholder rights with
respect to the shares subject to the option until such person shall have exercised the option, paid
the exercise price and become a holder of record of the purchased shares.
E. Unvested Shares. The Plan Administrator shall have the discretion to grant options
which are exercisable for unvested shares of Common Stock. Should the Optionee cease Service while
holding such unvested shares, the Corporation shall have the right to repurchase, at the exercise
price paid per share, all or (at the discretion of the Corporation and with the consent of the
Optionee) any of those unvested shares. The terms upon which such repurchase right shall be
exercisable (including the period and procedure for exercise and the appropriate vesting schedule
for the purchased shares) shall be established by the Plan Administrator and set forth in the
document evidencing such repurchase right.
F. First Refusal Rights. Until such time as the Common Stock is first registered
under Section 12(g) of the 1934 Act, the Corporation shall have the right of first refusal with
respect to any proposed disposition by the Optionee (or any successor in interest) of any shares of
Common Stock issued under the Plan. Such right of first refusal shall be
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exercisable in accordance with the terms established by the Plan Administrator and set forth in the
document evidencing such right.
G. Limited Transferabilily of Options. During the lifetime of the Optionee, the
option shall be exercisable only by the Optionee and shall not be assignable or transferable other
than by will or by the laws of descent and distribution following the Optionees death.
H. Withholding. The Corporations obligation to deliver shares of Common Stock upon
the exercise of any options granted under the Plan shall be subject to the satisfaction of all
applicable Federal, state and local income and employment tax withholding requirements.
II. | INCENTIVE OPTIONS |
The terms specified below shall be applicable to all Incentive Options. Except as modified by
the provisions of this Section II, all the provisions of the Plan shall be applicable to Incentive
Options. Options which are specifically designated as Non-Statutory Options shall not be
subject to the terms of this Section II.
A. Eligibility. Incentive Options may only be granted to Employees.
B. Exercise Price. The exercise price per share shall not be less than one hundred
percent (100%) of the Fair Market Value per share of Common Stock on the option grant date.
C. Dollar Limitation. The aggregate Fair Market Value of the shares of Common Stock
(determined as of the respective date or dates of grant) for which one or more options granted to
any Employee under the Plan (or any other option plan of the Corporation or any Parent or
Subsidiary) may for the first time become exercisable as Incentive Options during any one (1)
calendar year shall not exceed the sum of One Hundred Thousand Dollars ($100,000) (the ISO
Limit). To the extent the Employee holds two (2) or more such options which become exercisable
for the first time in the same calendar year, the foregoing limitation on the exercisability of
such options as Incentive Options shall be applied on the basis of the order in which such options
are granted. Notwithstanding the foregoing, any Incentive Option shall become exercisable as of
its respective vesting dates and, to the extent the ISO Limit is exceeded, the portion of the
option that becomes exercisable because of vesting in excess of the ISO limit for any particular
year shall be treated as a Non-Statutory Option under the Federal tax laws.
D. 10% Stockholder. If any Employee to whom an Incentive Option is granted is a 10%
Stockholder, then the option term shall not exceed five (5) years measured from the option grant
date.
III. | CORPORATE TRANSACTION |
A. The shares subject to each option outstanding under the Plan at the time of a Corporate
Transaction shall automatically vest in full so that each such option shall,
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immediately prior to the effective date of the Corporate Transaction, become fully exercisable for
all of the shares of Common Stock at the time subject to that option and may be exercised for any
or all of those shares as fully-vested shares of Common Stock. Notwithstanding the foregoing, with
respect to any option that is subject to Section 409A of the Code and payment or settlement of the
option is to be accelerated in connection with the Corporate Transaction, no Corporate Transaction
will be deemed to have occurred for purposes of the Plan and any option agreement unless such
event(s) also constitutes a change in the ownership, change in the effective control or a
change in the ownership of a substantial portion of the assets of the Corporation as defined
under Section 409A of the Code. In addition, the shares subject to an outstanding option shall not
vest on such an accelerated basis if and to the extent: (i) such option is assumed by the successor
corporation (or parent thereof) in the Corporate Transaction and the Corporations repurchase
rights with respect to the unvested option shares are concurrently assigned to such successor
corporation (or parent thereof) or (ii) such option is to be replaced with a cash incentive program
of the successor corporation which preserves the spread existing on the unvested option shares at
the time of the Corporate Transaction and provides for subsequent payout in accordance with the
same vesting schedule applicable to those unvested option shares or (iii) the acceleration of such
option is subject to other limitations imposed by the Plan Administrator at the time of the option
grant.
B. All outstanding repurchase rights shall also terminate automatically, and the shares of
Common Stock subject to those terminated rights shall immediately vest in full, in the event of any
Corporate Transaction, except to the extent: (i) those repurchase rights are assigned to the
successor corporation (or parent thereof) in connection with such Corporate Transaction or (ii)
such accelerated vesting is precluded by other limitations imposed by the Plan Administrator at the
time the repurchase right is issued, in each case to the extent permitted without adverse tax
consequences to the Optionees under Section 409A of the Code.
C. Immediately following the consummation of the Corporate Transaction, all outstanding
options shall terminate and cease to be outstanding, except to the extent assumed by the successor
corporation (or parent thereof).
D.
Each option which is assumed in connection with a Corporate Transaction shall be appropriately adjusted, immediately after such Corporate Transaction, to apply to the
number and class of securities which would have been issuable to the Optionee in consummation of
such Corporate Transaction, had the option been exercised immediately prior to such Corporate
Transaction. Appropriate adjustments shall also be made to (i) the number, kind and class of
securities available for issuance under the Plan following the consummation of such Corporate
Transaction and (ii) the exercise price payable per share under each outstanding option,
provided the aggregate exercise price payable for such securities shall remain the same.
E. The Plan Administrator shall have the discretion, exercisable either at the time the option
is granted or at any time while the option remains outstanding, to provide for the automatic
acceleration (in whole or in part) of one or more outstanding options (and the automatic
termination of one or more outstanding repurchase rights, with the immediate vesting of the shares
of Common Stock subject to those terminated rights) upon the occurrence of a
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Corporate Transaction, whether or not those options are to be assumed or replaced (or those
repurchase rights are to be assigned) in the Corporate Transaction.
F. The Plan Administrator shall also have full power and authority, exercisable either at the
time the option is granted or at any time while the option remains outstanding, to structure such
option so that the shares subject to that option will automatically vest on an accelerated basis
should the Optionees Service terminate by reason of an Involuntary Termination within a designated
period (not to exceed eighteen (18) months) following the effective date of any Corporate
Transaction in which the option is assumed and the repurchase rights applicable to those shares do
not otherwise terminate. Any such option shall remain exercisable for the fully-vested option
shares until the earlier of (i) the expiration of the option term or (ii) the expiration of
the one (1)-year period measured from the effective date of the Involuntary Termination. In
addition, the Plan Administrator may provide that one or more of the outstanding repurchase rights
with respect to shares held by the Optionee at the time of such Involuntary Termination shall
immediately terminate on an accelerated basis, and the shares subject to those terminated rights
shall accordingly vest.
G. The portion of any Incentive Option accelerated in connection with a Corporate Transaction
shall remain exercisable as an Incentive Option only to the extent the applicable One Hundred
Thousand Dollar limitation is not exceeded. To the extent such dollar limitation is exceeded, the
accelerated portion of such option shall be exercisable as a Non-Statutory Option under the Federal
tax laws.
H. The grant of options under the Plan shall in no way affect the right of the Corporation to
adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.
IV. | CANCELLATION AND REGRANT OF OPTIONS |
The Plan Administrator shall have the authority to effect, at any time and from time to time,
with the consent of the affected option holders, the cancellation of any or all outstanding options
under the Plan and to grant in substitution therefor new options covering the same or different
number of shares of Common Stock but with an exercise price per share based on the Fair Market
Value per share of Common Stock on the new option grant date.
ARTICLE THREE
STOCK ISSUANCE PROGRAM
I. | STOCK ISSUANCE TERMS |
Shares of Common Stock may be issued under the Stock Issuance Program through direct and
immediate issuances without any intervening option grants. Each such stock
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issuance shall be evidenced by a Stock Issuance Agreement which complies with the terms specified
below.
A. | Purchase Price. |
1. The purchase price per share shall be fixed by the Plan Administrator but shall not be less
than eighty-five percent (85%) of the Fair Market Value per share of Common Stock on the issue
date. However, the purchase price per share of Common Stock issued to a 10% Stockholder shall not
be less than one hundred and ten percent (110%) of such Fair Market Value.
2. Subject to the provisions of Section I of Article Four, shares of Common Stock may be
issued under the Stock Issuance Program for any of the following items of consideration which the
Plan Administrator may deem appropriate in each individual instance:
(i) cash or check made payable to the Corporation, or
(ii) past services rendered to the Corporation (or any Parent or Subsidiary).
B. | Vesting Provisions. |
1. Shares of Common Stock issued under the Stock Issuance Program may, in the discretion of
the Plan Administrator, be fully and immediately vested upon issuance or may vest in one or more
installments over the Participants period of Service or upon attainment of specified performance
objectives.
2. Any new, substituted or additional securities or other property (including money paid other
than as a regular cash dividend) which the Participant may have the right to receive with respect
to the Participants unvested shares of Common Stock by reason of any stock dividend, stock split,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporations receipt of consideration shall be
issued subject to (i) the same vesting requirements applicable to the Participants unvested shares
of Common Stock and (ii) such escrow arrangements as the Plan Administrator shall deem appropriate.
3. The Participant shall have full stockholder rights with respect to any shares of Common
Stock issued to the Participant under the Stock Issuance Program, whether or not the Participants
interest in those shares is vested. Accordingly, the Participant shall have the right to vote such
shares and to receive any regular cash dividends paid on such shares.
4. Should the Participant cease to remain in Service while holding one or more unvested shares
of Common Stock issued under the Stock Issuance Program or should the performance objectives not be
attained with respect to one or more such unvested shares of Common Stock, then those shares shall
be immediately surrendered to the Corporation for cancellation, and the Participant shall have no
further stockholder rights with respect to those
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shares. To the extent the surrendered shares were previously issued to the Participant for
consideration paid in cash or cash equivalent (including the Participants purchase-money
indebtedness), the Corporation shall repay to the Participant the cash consideration paid for the
surrendered shares and shall cancel the unpaid principal balance of any outstanding purchase-money
note of the Participant attributable to such surrendered shares.
5. The Plan Administrator may in its discretion waive the surrender and cancellation of one or
more unvested shares of Common Stock (or other assets attributable thereto) which would otherwise
occur upon the non-completion of the vesting schedule applicable to such shares. Such waiver shall
result in the immediate vesting of the Participants interest in the shares of Common Stock as to
which the waiver applies. Such waiver may be effected at any time, whether before or after the
Participants cessation of Service or the attainment or non-attainment of the applicable
performance objectives.
C. First Refusal Rights. Until such time as the Common Stock is first registered
under Section 12(g) of the 1934 Act, the Corporation shall have the right of first refusal with
respect to any proposed disposition by the Participant (or any successor in interest) of any shares
of Common Stock issued under the Stock Issuance Program. Such right of first refusal shall be
exercisable in accordance with the terms established by the Plan Administrator and set forth in the
document evidencing such right.
II. | CORPORATE TRANSACTION |
A. Upon the occurrence of a Corporate Transaction, all outstanding repurchase rights under the
Stock Issuance Program shall terminate automatically, and the shares of Common Stock subject to
those terminated rights shall immediately vest in full, except to the extent: (i) those repurchase
rights are assigned to the successor corporation (or parent thereof) in connection with such
Corporate Transaction or (ii) such accelerated vesting is precluded by other limitations imposed by
the Plan Administrator at the time the repurchase right is issued. Notwithstanding the foregoing,
with respect to any award that is subject to Section 409A of the Code and payment or settlement of
the award is to be accelerated in connection with the Corporate Transaction, no Corporate
Transaction will be deemed to have occurred for purposes of the Plan and any award agreement unless
such event(s) also constitutes a change in the ownership, change in the effective control or a
change in the ownership of a substantial portion of the assets of the Corporation as defined
under Section 409A of the Code.
B. The Plan Administrator shall have the discretionary authority, exercisable either at
the time the unvested shares are issued or any time while the Corporations repurchase rights with
respect to those shares remain outstanding, to provide that those rights shall automatically
terminate on an accelerated basis, and the shares of Common Stock subject to those terminated
rights shall immediately vest, in the event the Participants Service should subsequently terminate
by reason of an Involuntary Termination within a designated period (not to exceed eighteen (18)
months) following the effective date of any Corporate Transaction in which those repurchase rights
are assigned to the successor corporation (or parent thereof).
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III. | SHARE ESCROW/LEGENDS |
Unvested shares may, in the Plan Administrators discretion, be held in escrow by the
Corporation until the Participants interest in such shares vests or may be issued directly to the
Participant with restrictive legends on the certificates evidencing those unvested shares.
ARTICLE FOUR
MISCELLANEOUS
I. | FINANCING |
The Plan Administrator may permit any Optionee or Participant, other than a member of the
Board or an officer of the Corporation, to pay the option exercise price or the purchase price for
shares issued to such person under the Plan by delivering a full-recourse, interest-bearing
promissory note payable in one or more installments and secured by the purchased shares. In no
event shall the maximum credit available to the Optionee or Participant exceed the sum of
(i) the aggregate option exercise price or purchase price payable for the purchased shares plus
(ii) any Federal, state and local income and employment tax liability incurred by the Optionee or
the Participant in connection with the option exercise or share purchase.
II. | EFFECTIVE DATE AND TERM OF PLAN |
A. The Plan shall become effective when adopted by the Board, but no option granted under the
Plan may be exercised, and no shares shall be issued under the Plan, until the Plan is approved by
the Corporations stockholders. If such stockholder approval is not obtained within twelve (12)
months after the date of the Boards adoption of the Plan, then all options previously granted
under the Plan shall terminate and cease to be outstanding, and no further options shall be granted
and no shares shall be issued under the Plan. Subject to such limitation, the Plan Administrator
may grant options and issue shares under the Plan at any time after the effective date of the Plan
and before the date fixed herein for termination of the Plan.
B. The Plan shall terminate upon the earliest of (i) the expiration of the ten
(10)-year period measured from the date the Plan is adopted by the Board, (ii) the date on which
all shares available for issuance under the Plan shall have been issued or (iii) the termination of
all outstanding options in connection with a Corporate Transaction. All options and unvested stock
issuances outstanding at that time under the Plan shall continue to have full force and effect in
accordance with the provisions of the documents evidencing such options or issuances.
III. | AMENDMENT OF THE PLAN |
A. The Board shall have complete and exclusive power and authority to amend or modify the Plan
in any or all respects. However, no such amendment or modification shall adversely affect the
rights and obligations with respect to options or unvested stock
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issuances at the time outstanding under the Plan unless the Optionee or the Participant consents to
such amendment or modification. In addition, certain amendments may require stockholder approval
pursuant to applicable laws and regulations.
B. Options may be granted under the Option Grant Program and shares may be issued under the
Stock Issuance Program which are in each instance in excess of the number of shares of Common Stock
then available for issuance under the Plan, provided any excess shares actually issued under those
programs shall be held in escrow until there is obtained stockholder approval of an amendment
sufficiently increasing the number of shares of Common Stock available for issuance under the Plan.
If such stockholder approval is not obtained within twelve (12) months after the date the first
such excess issuances are made, then (i) any unexercised options granted on the basis of such
excess shares shall terminate and cease to be outstanding and (ii) the Corporation shall promptly
refund to the Optionees and the Participants the exercise or purchase price paid for any excess
shares issued under the Plan and held in escrow, together with interest (at the applicable Short
Term Federal Rate) for the period the shares were held in escrow, and such shares shall thereupon
be automatically cancelled and cease to be outstanding.
IV. | USE OF PROCEEDS |
Any cash proceeds received by the Corporation from the sale of shares of Common Stock under
the Plan shall be used for general corporate purposes.
V. | WITHHOLDING |
The Corporations obligation to deliver shares of Common Stock upon the exercise of any
options or upon the issuance or vesting of any shares issued under the Plan shall be subject to the
satisfaction of all applicable Federal, state and local income and employment tax withholding
requirements.
VI. | REGULATORY APPROVALS |
The implementation of the Plan, the granting of any options under the Plan and the issuance of
any shares of Common Stock (i) upon the exercise of any option or (ii) under the Stock Issuance
Program shall be subject to the Corporations procurement of all approvals and permits required by
regulatory authorities having jurisdiction over the Plan, the options granted under it and the
shares of Common Stock issued pursuant to it.
VII. | NO EMPLOYMENT OR SERVICE RIGHTS |
Nothing in the Plan shall confer upon the Optionee or the Participant any right to continue in
Service for any period of specific duration or interfere with or otherwise restrict in any way the
rights of the Corporation (or any Parent or Subsidiary employing or retaining such person) or of
the Optionee or the Participant, which rights are hereby expressly reserved by each, to terminate
such persons Service at any time for any reason, with or without cause.
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VIII. | FINANCIAL REPORTS |
The Corporation shall deliver a balance sheet and an income statement at least annually to
each individual holding an outstanding option under the Plan, unless such individual is a key
Employee whose duties in connection with the Corporation (or any Parent or Subsidiary) assure such
individual access to equivalent information
IX. | SECTION 409A OF THE CODE |
Notwithstanding any contrary provision in the Plan or an award agreement, if any provision of
the Plan or such agreement contravenes any regulations or guidance promulgated under Section 409A
of the Code or could cause an award to be subject to the interest and penalties under Section 409A
of the Code, such provision may be modified by the Company without consent of the Optionee or
Participant to maintain, to the maximum extent practicable, the original intent of the applicable
provision without violating the provisions of Section 409A of the Code. Moreover, any
discretionary authority that the Board or Committee may have pursuant to the Plan shall not be
applicable to an award that is subject to Section 409A of the Code, to the extent such
discretionary authority will contravene Section 409A of the Code or the regulations or guidance
promulgated thereunder.
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APPENDIX
The following definitions shall be in effect under the Plan:
A. Board shall mean the Corporations Board of Directors.
B. Code shall mean the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
C. Committee shall mean a committee of two (2) or more Board members appointed by the
Board to exercise one or more administrative functions under the Plan.
D.
Common Stock shall mean the Corporations common stock.
E. Corporate Transaction shall be deemed to have occurred when:
(i) Any Person is or becomes the beneficial owner (as defined in Rule 13d-3 of the
Exchange Act, whether or not the Corporation is then subject to the terms of the Exchange
Act), directly or indirectly, of securities of the Corporation representing twenty (20%)
percent or more of the combined voting power of the Corporations then-outstanding
securities; or
(ii) The following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who constitute the Board as of December 31,
1999 and any new director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including, but not limited to, a
consent solicitation, relating to the election of directors of the Corporation) whose
appointment or election by the Board or nomination for election by the Corporations
shareholders was approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so approved or recommended;
or
(iii) There is consummated a merger or consolidation of the Corporation, other
than (A) a merger or consolidation which would result in the voting securities of the
Corporation outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting securities of
the surviving entity or any parent thereof), in combination with the ownership of any
trustee or other fiduciary holding securities under an employee benefit plan of the
Corporation or any Subsidiary, at least sixty (60%) percent of the combined voting power of
the securities of the Corporation or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or consolidation effected to
implement a recapitalization of the Corporation (or similar transaction) in which no Person
is or becomes the beneficial owner, directly or indirectly, of securities of the Corporation
(not including in the securities beneficially owned by such Person any securities acquired
directly from the Corporation or its affiliates other
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than in connection with the securities acquired directly from the Corporation or its
affiliates other than in connection with the acquisition by the Corporation or its
affiliates of a business) representing twenty (20%) percent or more of the combined voting
power of the Corporations then outstanding securities; or
(iv) The shareholders of the Corporation approve a plan of complete liquidation or
dissolution of the Corporation or there is consummated an agreement for the sale or
disposition by the Corporation of all or substantially all of the Corporations assets,
other than a sale or disposition by the Corporation of all or substantially all of the
Corporations assets to an entity, at least sixty (60%) percent of the combined voting power
of the voting securities of which are owned by shareholders of the Corporation in
substantially the same proportions as their ownership of the Corporation immediately prior
to such sale.
F. Corporation shall mean Ceres, Inc., a Delaware corporation.
G. Disability shall mean the inability of the Optionee or the Participant to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment and shall be determined by the Plan Administrator on the basis of such medical evidence
as the Plan Administrator deems warranted under the circumstances.
H. Employee shall mean an individual who is in the employ of the Corporation (or any
Parent or Subsidiary), subject to the control and direction of the employer entity as to both the
work to be performed and the manner and method of performance.
I. Exercise Date shall mean the date on which the Corporation shall have received
written notice of the option exercise.
J. Fair Market Value per share of Common Stock on any relevant date shall be
determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq National Market, then the
Fair Market Value shall be the closing selling price per share of Common Stock on the date
in question, as such price is reported by the National Association of Securities Dealers on
the Nasdaq National Market or any successor system. If there is no closing selling price
for the Common Stock on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock Exchange, then the Fair
Market Value shall be the closing selling price per share of Common Stock on the date in
question on the Stock Exchange determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in the composite tape of
transactions on such exchange. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
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(iii) If the Common Stock is at the time neither listed on any Stock Exchange nor
traded on the Nasdaq National Market, then the Fair Market Value shall be determined by the
Plan Administrator after taking into account such factors as the Plan Administrator shall
deem appropriate.
K. Incentive Option shall mean an option which satisfies the requirements of Code
Section 422.
L. Involuntary Termination shall mean the termination of the Service of any individual
which occurs by reason of:
(i) such individuals involuntary dismissal or discharge by the Corporation for reasons
other than Misconduct, or
(ii) such individuals voluntary resignation following (A) a change in his or her
position with the Corporation which materially reduces his or her level of responsibility,
(B) a reduction in his or her level of compensation (including base salary, fringe benefits
and target bonuses under any corporate-performance based bonus or incentive programs) by
more than fifteen percent (15%) or (C) a relocation of such individuals place of employment
by more than fifty (50) miles, provided and only if such change, reduction or relocation is
effected without the individuals consent;
provided, however, that in no circumstances shall an event constitute an
Involuntary Termination if it would create an inappropriate acceleration of payment that
could give rise to adverse tax consequences to a Participant or Optionee under Section 409A
of the Code.
M. Misconduct shall mean the commission of any act of fraud, embezzlement or
dishonesty by the Optionee or Participant, any unauthorized use or disclosure by such person of
confidential information or trade secrets of the Corporation (or any Parent or Subsidiary), or any
other intentional misconduct by such person adversely affecting the business or affairs of the
Corporation (or any Parent or Subsidiary) in a material manner. The foregoing definition shall not
be deemed to be inclusive of all the acts or omissions which the Corporation (or any Parent or
Subsidiary) may consider as grounds for the dismissal or discharge of any Optionee, Participant or
other person in the Service of the Corporation (or any Parent or Subsidiary).
N. 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
O. Non-Statutory Option shall mean an option not intended to satisfy the requirements
of Code Section 422.
P. Option Grant Program shall mean the option grant program in effect under the Plan.
Q. Optionee shall mean any person to whom an option is granted under the Plan.
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R. Parent shall mean any corporation (other than the Corporation) in an unbroken chain
of corporations ending with the Corporation, provided each corporation in the unbroken chain (other
than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of the other corporations
in such chain.
S. Participant shall mean any person who is issued shares of Common Stock under
the Stock Issuance Program.
T. Person shall mean any person, entity or group within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act, except that such term shall not include (i) the
Corporation or any of its Subsidiaries, (ii) a trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation or any of its Subsidiaries, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation
owned, directly or indirectly, by the shareholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation.
U. Plan shall mean the Corporation s 2000 Stock Option/Stock Issuance Plan, as amended
and restated as of August 4, 2006, revised August 19, 2008 as set forth in this document, and as
may be amended from time to time.
V. Plan Administrator shall mean either the Board or the Committee acting in its
capacity as administrator of the Plan.
W. Service shall mean the provision of services to the Corporation (or any Parent or
Subsidiary) by a person in the capacity of an Employee, a non-employee member of the board of
directors or a consultant or independent advisor, except to the extent otherwise specifically
provided in the documents evidencing the option grant.
X. Stock Exchange shall mean either the American Stock Exchange or the New York Stock
Exchange.
Y. Stock Issuance Agreement shall mean the agreement entered into by the Corporation
and the Participant at the time of issuance of shares of Common Stock under the Stock Issuance
Program.
Z. Stock Issuance Program shall mean the stock issuance program in effect under the
Plan.
AA. Subsidiary shall mean any corporation (other than the Corporation) in an unbroken
chain of corporations beginning with the Corporation, provided each corporation (other than the
last corporation) in the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
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BB. 10% Stockholder shall mean the owner of stock (as determined under Code Section
424(d)) possessing more than ten percent (10%) of the total combined voting power of all classes of
stock of the Corporation (or any Parent or Subsidiary).
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