EMPLOYMENT AGREEMENT
Exhibit 10.27
THIS EMPLOYMENT AGREEMENT, dated as of September 1, 2011 (this “Agreement”), is by and
between Ceres, Inc., a Delaware corporation, and Xxxxxxx X. Xxxxxxx (the “Executive”).
WHEREAS, the Company has determined that it is in the best interests of the Company and its
shareholders to enter into an employment agreement with the Executive and the Executive is willing
to continue to serve as an employee of the Company, subject to the terms and conditions of this
Agreement;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions.
1.1 “Annual Bonus” has the meaning set forth in Section 4.2.
1.2 “Board” means the Board of Directors of the Company, as constituted from time to
time.
1.3 Termination for “Cause” means termination of the Executive’s employment because
of:
(a) any act or omission that constitutes a material breach by the Executive of any of
his/her obligations under this Agreement or any other written agreement with the Company,
which breach, to the extent curable, is not cured to the reasonable satisfaction of the
Board within 30 days following the Executive’s receipt of written notice from the Board of
the existence of the breach;
(b) the Executive’s conviction of, or plea of nolo contendere to (i) any felony or (ii)
another crime involving dishonesty or moral turpitude or which could reflect negatively upon
the Company or otherwise impair or impede its operations, as determined by the Board;
(c) the Executive’s engaging in any misconduct, negligence, act of dishonesty, violence
or threat of violence (including any violation of Federal securities laws) that is injurious
to the Company or any of its subsidiaries or affiliates;
(d) the Executive’s material breach of a written policy of the Company or the rules of
any governmental or regulatory body applicable to the Company, which breach, in the
reasonable opinion of the Board, may result in an adverse effect on the Company or any of
its subsidiaries or affiliates, or could reflect negatively upon otherwise impair or impede
the operations of the Company or its subsidiaries or affiliates; or
(e) any other willful misconduct by the Executive that is materially injurious to the
financial condition or business reputation of the Company or any of its subsidiaries or
affiliates.
1.4 “Change in Control” means the occurrence of any of the following events:
(a) Any “person” or group of “persons” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the “Exchange Act”)) becomes the “beneficial owner” (as
defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the
Company representing greater than 50% of the total voting power represented by the Company’s
then outstanding voting securities (or has become the beneficial owner during the 12-month
period ending on the date of the most recent acquisition by such person or persons);
(b) The consummation of the sale or disposition by the Company of all or substantially
all of the Company’s assets; or
(c) The consummation of a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity
or its parent) 50% or more of the total voting power represented by the voting securities of
the Company or such surviving entity or its parent outstanding immediately after such merger
or consolidation;
provided, however, that if a Change in Control constitutes a payment event with
respect to any payment that provides for the deferral of compensation and is subject to Section
409A of the Code, the transaction or event described in subsection (a), (b) or (c) herein, with
respect to such payment must also constitute a “change in control event,” as defined in Treasury
Regulation §1.409A-3(i)(5) to the extent required by Section 409A of the Code. The Board shall
have full and final authority, which shall be exercised in good faith, to determine conclusively
whether a Change in Control of the Company has occurred pursuant to the above definition, and the
date of the occurrence of such Change in Control and any incidental matters relating thereto.
1.5 “Code” means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
1.6 “Committee” means the Compensation Committee of the Board of Directors.
1.7 “Company” means Ceres, Inc., a Delaware corporation, or any successor thereof, and
its consolidated subsidiaries and affiliates.
1.8 “Disability” means a physical or mental disability or infirmity of the Executive
that prevents the normal performance of substantially all his/her duties for a period in excess of
90 consecutive days or for more than 180 days in any consecutive 12-month period. Evidence of such
physical or mental disability or infirmity shall be certified by a physician licensed to
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practice in the state of residence of the Executive, which physician is mutually agreeable to
the CEO and the Executive.
1.9 Resignation for “Good Reason” means the Executive’s voluntary resignation because
of the occurrence of any of the following events:
(a) an adverse change in the Executive’s position with the Company that materially
reduces his/her level of authority, duties or responsibility;
(b) a reduction in the Executive’s level of Base Salary by more than 5 percent, except
a reduction of the Executive’s level of Base Salary by 15 percent or less if such reduction
is similarly applied to all of the Company’s then-current executive officers;
(c) a relocation of the Executive’s place of employment by more than 50 miles, provided
without the Executive’s consent; or
(d) a substantial change in the nature or orientation of the Company’s core business,
resulting in the Company no longer being substantially engaged in the agricultural
biotechnology business.
In the event of existence of grounds that would constitute Good Reason as contemplated in
subsections (a), (b), (c) or (d) above, such grounds shall constitute Good Reason only if the
Executive provides written notice to the Company of the facts which constitute the grounds within
90 days following the initial existence of the grounds and the Company thereafter fails to cure
such grounds within 30 business days following its receipt of such notice (or, in the event that
such grounds cannot be corrected within such 30-day period, the Company has not taken all
reasonable steps within such 30-day period to correct such grounds as promptly as practicable
thereafter).
1.10 “Separation Date” means the date of the Executive’s Separation from Service.
1.11 “Separation from Service” means a termination of employment that is deemed a
separation from service for purposes of Section 409A of the Code.
2. Employment and Duties.
2.1 General. The Executive shall serve as the Chief Scientific Officer of the Company
and shall report directly to the Chief Executive Officer of the Company (the “CEO”). The
Executive shall have such duties and responsibilities, commensurate with the Executive’s position,
as may be assigned to the Executive from time to time by the CEO. The Executive’s principal place
of employment shall be located in Thousand Oaks, California; provided, however,
that the parties understand and agree that the Executive’s duties are such that he will be required
to frequently travel for business reasons.
2.2 Exclusive Services. For so long as the Executive is employed by the Company, the
Executive shall devote his full-time working time to his duties hereunder, shall faithfully serve
the Company, shall in all material respects conform to and comply with the lawful directions and
instructions given to him by the CEO and shall use his reasonable best efforts to
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promote and serve the interests of the Company. Further, without the prior written approval
of the Board, the Executive shall not, directly or indirectly, render services to any competitor,
customer or supplier of the Company or to any other company or organization, or engage in
activities that would interfere in any material respect with his faithful performance of his duties
hereunder. Notwithstanding the foregoing, it is understood and agreed that, in the course of
performing his duties hereunder, the Executive may serve on not-for-profit corporate, civic or
charitable boards or engage in charitable activities, and will have speaking engagements and
teaching activities in furtherance of his duties hereunder, provided that in each case such
activities do not contravene the first sentence of this Section 2.2.
3. Term. The initial term of the Executive’s employment under this Agreement shall commence on
September 1, 2011 (the “Effective Date”) and shall expire on the first anniversary of the
Effective Date (the “Initial Term”); provided, however, that the Initial
Term of the Executive’s employment shall be automatically extended without further action of either
party for additional one-year periods, unless written notice of either party’s intention not to
extend the term has been given to the other party at least 90 days prior to the expiration of the
then-effective term. The Initial Term, together with any extensions, is referred to herein as the
“Term.”
4. Compensation and Other Benefits. Subject to the provisions of this Agreement, the Company shall
pay and provide the following compensation and other benefits to the Executive during the Term as
compensation for services rendered hereunder:
4.1 Base Salary. The Company shall pay to the Executive an annual salary (the
“Base Salary”) at the rate of $306,000, payable in substantially equal installments at such
intervals as may be determined by the Company in accordance with its ordinary payroll practices, as
established from time to time. The Base Salary shall be reviewed by the Committee or the Board not
less often than annually.
4.2 Performance Bonus. For each fiscal year during the Term, the Executive shall be
eligible for a bonus opportunity under the Company’s performance incentive plan (the “Annual
Bonus”), at a level as determined by the Board (or a committee thereof) in its sole discretion.
The actual payout of the Annual Bonus will be determined based upon the extent to which the
applicable performance goals established by the Company are satisfied. Such bonus, if any, shall
be paid to the Executive no later than March 15th of the calendar year following the
calendar year in which the bonus is earned.
4.3 Long-Term Incentive Awards. The Executive shall be eligible to receive
equity-based awards under the Company’s 2011 Equity Incentive Plan (or any successor plan thereto)
from time to time as determined by the Committee or the Board.
4.4 Savings and Retirement Plans. The Executive shall be eligible to participate in
all savings and retirement plans applicable generally to other executives of the Company, in
accordance with the terms of the plans, as may be amended from time to time.
4.5 Welfare Benefit Plans. The Executive and his/her eligible dependents shall be
eligible to participate in and shall receive all benefits under the Company’s welfare benefit plans
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and programs applicable generally to other executives of the Company, in accordance with the
terms of the plans, as may be amended from time to time.
4.6 Expenses. Upon presentation of written documentation thereof, in accordance with
the applicable expense reimbursement policies and procedures of the Company as in effect from time
to time, the Company shall reimburse the Executive for reasonable business-related expenses
incurred by the Executive in the fulfillment of his/her duties. Payments with respect to
reimbursements of expenses shall be made promptly and in accordance with the applicable expense
reimbursement policies and procedures of the Company, but in any event, on or before the last day
of the calendar year following the calendar year in which the relevant expense is incurred. The
amount of expenses eligible for reimbursement during a calendar year may not affect the expenses
eligible for reimbursement in any other calendar year.
4.7 Vacation and Other Paid Time Off. The Executive shall be entitled to vacation
time and other paid time off consistent with the applicable policies of the Company as in effect
from time to time.
5. Termination of Employment.
5.1 Termination for Cause; Resignation without Good Reason. If, prior to the
expiration of the Term, the Executive incurs a Separation from Service by reason of the Company’s
termination of the Executive’s employment or nonrenewal of the Term for Cause, or if the Executive
resigns from his/her employment hereunder other than for Good Reason, the Executive shall be
entitled only to payment of any unpaid Base Salary through and including the date of termination or
resignation, any Annual Bonus earned, but unpaid, for the fiscal year immediately preceding the
fiscal year in which the Separation Date occurs (which unpaid Annual Bonus amount shall be paid no
later than March 15 of the year following the year in which the amount was earned), and any other
amounts or benefits required to be paid or provided by law or under any plan, program, policy or
practice of the Company (such other amounts or benefits being referred to collectively as the
“Other Accrued Compensation and Benefits”). Except as set forth in this Section 5.1, the
Executive shall have no further right to receive any other compensation or benefits after such
termination or resignation of employment.
5.2 Termination without Cause; Resignation for Good Reason.
(a) If, prior to the expiration of the Term, (X) the Executive incurs a Separation from
Service by reason of the Company’s termination of the Executive’s employment or nonrenewal
of the Term for reasons other than for Cause or the Executive’s resignation from his/her
employment hereunder for Good Reason, and (Y) the provisions of Section 5.2(b) do not apply,
the Executive shall be entitled to the following payments and benefits:
(i) severance pay equal to the Executive’s annual Base Salary then in effect
(or, if the Executive is resigning for Good Reason due to a reduction in his/her
level of Base Salary, his/her annual Base Salary as in effect immediately prior to
such reduction);
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(ii) to the extent that the Separation from Service occurs on or after the
mid-point of the fiscal year of the Company, a pro-rated Annual Bonus for the fiscal
year during which the Separation from Service occurs (which pro-rated Annual Bonus
shall be paid no later than March 15 of the calendar year following the year during
which the Separation from Service occurred); and
(iii) any Other Accrued Compensation and Benefits.
(b) If, prior to the expiration of the Term, (X) the Executive incurs a Separation from
Service by reason of the Company’s termination of the Executive’s employment or nonrenewal
of the Term for reasons other than for Cause, or if the Executive resigns from his/her
employment hereunder for Good Reason, and (Y) such termination or resignation occurs within
six months prior to or within 12 months following a Change in Control, the Executive shall
be entitled to (i) severance pay equal to two times the Executive’s annual Base Salary then
in effect (or, if the Executive is resigning for Good Reason due to a reduction in his/her
level of Base Salary, his/her annual Base Salary as in effect immediately prior to such
reduction) and (ii) any Other Accrued Compensation and Benefits.
(c) If the Executive breaches any material provision of Sections 6 through 7 hereof or
breaches any material provision of the executed copy of the General Release of Claims, the
Executive shall not be eligible, as of the date of such breach, for the payments and
benefits described in Sections 5.2(a) or 5.2(b) and the Executive shall be required to repay
to the Company any payments or benefits received under Sections 5.2(a) or 5.2(b) to the
maximum extent permitted by applicable law.
(d) Unless otherwise provided herein, all payments and benefits provided under this
Section 5.2 shall be paid in a lump sum within 60 days after the Separation Date. The
Company shall not be required to make the payments and provide the benefits provided for
under this Section 5.2 unless the Executive executes and delivers to the Company a General
Release of Claims substantially in the form attached hereto as Exhibit A, and such
release has become effective and irrevocable in its entirety prior to the 60th
day following the Separation Date. The Executive’s failure or refusal to sign the release
(or the Executive’s revocation of such release in accordance with applicable laws) within
such time frame shall result his/her forfeiture of the payments and benefits provided for
under this Section 5.2 (other than those required to be provided by applicable law).
5.3 Termination Due to Death or Disability. The Executive’s employment with the
Company shall terminate automatically on the Executive’s death. In the event of the Executive’s
Disability, the Company shall be entitled to terminate his/her employment. In the event of the
Executive’s death or if the Executive incurs a Separation from Service by reason of the Executive’s
Disability, the Executive (or his/her estate, if applicable) shall be entitled to those benefits
and payments described in Section 5.2(a).
5.4 Notice of Termination. Any termination of employment by the Company or the
Executive shall be communicated by a written “Notice of Termination” to the other party
hereto
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given in accordance with Section 22 of this Agreement at least 90 calendar days prior to the
effective date of the termination (except in respect of a termination by the Company for Cause,
which termination shall be effective immediately upon the Company’s delivery of the Notice of
Termination). In the event of a termination by the Company for Cause, or a resignation by the
Executive for Good Reason, the Notice of Termination shall (i) indicate the specific termination
provision in this Agreement relied upon, (ii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment under the
provision so indicated and (iii) specify the date of termination, provided, that the date
of termination will not occur before the expiration of any applicable cure period. The failure by
the Executive or the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive
or the Company, respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights
hereunder.
5.5 Resignation from Directorships and Officerships. The termination of the
Executive’s employment for any reason shall constitute the Executive’s resignation from (i) any
director, officer or employee position the Executive has with the Company and (ii) all fiduciary
positions the Executive holds with respect to any employee benefit plans or trusts established by
the Company. The Executive agrees that this Agreement shall serve as written notice of resignation
in this circumstance.
5.6 No Further Rights. Except as expressly provided in this Agreement, the Executive
shall have no further rights under this Agreement or otherwise to receive any other compensation or
benefits after such termination or resignation of employment.
6. Confidentiality, Proprietary Information and Inventions. The Confidentiality, Proprietary
Information and Inventions Agreement entered into between the Company and the Executive on June 26,
1998, and attached hereto as Exhibit B (the “Confidentiality Agreement”) is hereby
incorporated into this Agreement. The Executive hereby affirms and agrees that s/he continues to
be subject to the terms of the Confidentiality Agreement and s/he shall comply with the terms
thereof. Any breach of the Confidentiality Agreement shall also constitute a breach of this
Agreement.
7. Non-disparagement. Each party represents, warrants and covenants to the other that at no time
during the Term or thereafter shall such party make, or cause or assist any other person to make,
any statement or other communication to any third party which impugns or attacks, or is otherwise
critical of, the reputation, business or character of the other party or any of its respective
directors, officers or employees, as applicable.
8. Recoupment Provisions. Payments made under this Agreement that are in the form of incentive or
bonus payments or benefits may be subject to any clawback or recoupment policies and procedures
that are required under applicable law.
9. Section 409A of the Code. This Agreement is intended to comply with the short-term deferral
exemption under Section 409A of the Code, and shall be interpreted and construed consistent with
that intent. Notwithstanding any other provision of this Agreement, to the extent
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that the right to any payment (including the provision of benefits) hereunder provides for the
“deferral of compensation” within the meaning of Section 409A(d)(1) of the Code, if the Executive
is a “Specified Employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code on the date of
the Employee’s Separation Date, then no such payment shall be made or commence during the period
beginning on the Separation Date and ending on the date that is six months following the Separation
Date or, if earlier, on the date of the Executive’s death. The amount of any payment that would
otherwise be paid to the Executive during this period shall instead be paid to the Executive on the
15th day of the first calendar month following the end of such period.
10. Injunctive Relief. Without intending to limit the remedies available to the Company, the
Executive agrees that a material breach of any of the covenants contained in Sections 6 through 7
of this Agreement may result in material and irreparable injury to the Company for which there is
no adequate remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, any member of the Company
shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction,
or both, without bond or other security, restraining the Executive from engaging in activities
prohibited by the covenants contained in Sections 6 through 7 of this Agreement or such other
relief as may be required specifically to enforce any of the covenants contained in this Agreement.
Such injunctive relief in any court shall be available to the Company in lieu of, or prior to or
pending determination in, any arbitration proceeding.
11. Defense of Claims. The Executive agrees that, during the Term, and for a period of six years
after termination of the Executive’s employment, upon request from the Company, the Executive will
reasonably cooperate with the Company in the defense of any claims or actions that may be made by
or against the Company that affect the Executive’s prior areas of responsibility, except if the
Executive’s reasonable interests are adverse to the Company in such claim or action. The Company
agrees to promptly pay in advance or reimburse the Executive for, as requested by the Executive,
all of the Executive’s reasonable travel, time and other direct costs and expenses incurred, or to
be reasonably incurred, to comply with the Executive’s obligations under this Section 11,
including, but not limited to, legal costs and expenses.
12. Source of Payments. All payments provided under this Agreement, other than payments made
pursuant to a plan which provides otherwise, shall be paid in cash from the general funds of the
Company, and no special or separate fund shall be established, and no other segregation of assets
shall be made, to assure payment. The Executive shall have no right, title or interest whatsoever
in or to any investments which the Company may make to aid the Company in meeting its obligations
hereunder.
13. Indemnification. To the fullest extent permitted by the indemnification provisions of the laws
of the State of Delaware in effect from time to time, and subject to the conditions thereof, the
Company shall (A) indemnify the Executive, as an officer of the Company, against all liabilities
and reasonable expenses that the Executive may incur in any threatened, pending, or completed
action, suit or proceeding, whether domestic or abroad, whether civil, criminal or administrative,
or investigative and whether formal or informal, because the Executive is or was an officer of the
Company (or is or was serving, at the request of the Company, as a director, officer, trustee,
partner, managing member, fiduciary, employee or agent of any other entity),
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and against which the Executive may be indemnified by the Company, and (B) upon submission of
appropriate documentation, pay for or reimburse in advance the reasonable expenses incurred or to
be incurred by the Executive in the defense of any proceeding to which the Executive is a party
because the Executive is or was an officer of the Company (or is or was serving, at the request of
the Company, as a director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other entity). The rights of the Executive hereunder and under the Articles of
Incorporation and Bylaws of the Company and under the laws of the State of Delaware shall survive
the termination of the employment of the Executive by the Company. Unless specifically so provided
therein, no amendment, alteration or repeal of this Agreement or of any provision hereof shall
limit or restrict any right of the Executive under this Agreement in respect of any action taken or
omitted by the Executive prior to such amendment, alteration or repeal. To the extent that a
change in the laws of the State of Delaware, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the laws of the State of Delaware,
it is the intent of the parties hereto that the Executive shall enjoy by this Agreement the greater
benefits afforded by such change. No right or remedy herein conferred is intended to be exclusive
of any other right or remedy (including under the Articles of Incorporation or Bylaws of the
Company), and every other right or remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise (including
under the Articles of Incorporation or Bylaws of the Company).
14. Non-assignability; Binding Agreement.
14.1 By the Executive. This Agreement and any and all rights, duties, obligations or
interests hereunder shall not be assignable or delegable by the Executive.
14.2 By the Company. This Agreement and all of the Company’s rights and obligations
hereunder shall be assignable by the Company to any affiliate of the Company, or as incident to a
reorganization, merger or consolidation, or transfer of any business unit or other of the Company’s
assets.
14.3 Binding Effect. This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto, any successors to or assigns of the Company and the Executive’s heirs and
the personal representatives of the Executive’s estate.
15. Withholding. Any payments made or benefits provided to the Executive under this Agreement
shall be reduced by any applicable withholding taxes or other amounts required to be withheld by
law or contract.
16. Amendment; Waiver. This Agreement may not be modified, amended or waived in any manner, except
by an instrument in writing signed by both parties hereto. The waiver by either party of
compliance with any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such
party of a provision of this Agreement.
17. Governing Law and Forum. The Executive and the Company agree that this Agreement and all
matters or issues arising out of or relating to the Executive’s employment
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with the Company shall be governed by the laws of the State of California applicable to contracts
entered into and performed entirely therein.
18. Survival of Certain Provisions. Unless expressly provided otherwise, the rights and
obligations set forth in this Agreement shall survive any termination or expiration of the Term.
19. Entire Agreement; Supersedes Previous Agreements. This Agreement contains the entire agreement
and understanding of the parties hereto with respect to the matters covered herein, and supersedes
all prior or contemporaneous negotiations, commitments, agreements and writings with respect to the
subject matter hereof (including the Offer Letter between the Company and the Executive, dated June
19, 1998, but excluding the Confidentiality Agreement), all such other negotiations, commitments,
agreements and writings shall have no further force or effect, and the parties to any such other
negotiation, commitment, agreement or writing shall have no further rights or obligations
thereunder.
20. Counterparts. This Agreement may be executed by either of the parties hereto in counterparts,
each of which shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
21. Headings. The headings of sections herein are included solely for convenience of reference and
shall not control the meaning or interpretation of any of the provisions of this Agreement.
22. Notices. All notices or communications hereunder shall be in writing, addressed as follows:
To the Company:
with a copy to:
To the Executive:
Xxxxxxx X. Xxxxxxx
All such notices shall be conclusively deemed to be received and shall be effective if sent by
hand delivery or nationally recognized courier, upon receipt.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its officer pursuant
to the authority of its Board, and the Executive has executed this Agreement, as of the day and
year first written above.
| CERES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | ||||
| Title: | ||||
| EXECUTIVE |
||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxxx | |||
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Exhibit A
GENERAL RELEASE OF CLAIMS
This General Release of all Claims (this “Agreement”) is entered into by
(the “Executive”) and Ceres, Inc. (the “Company”), effective as of ,
in connection with the termination of the Executive’s employment with the Company as of
.
In consideration of the promises set forth in the employment agreement between the Executive
and the Company, dated (the “Employment Agreement”), the Executive and the
Company agree as follows:
1. Return of Property. All Company files, access keys and codes, desk keys, ID badges,
computers, records, manuals, electronic devices, computer programs, papers, electronically stored
information or documents, telephones and credit cards, and any other property of the Company in the
Executive’s possession must be returned no later than the date of the Executive’s termination from
the Company; provided, that, after the notification of an consultation with the Company,
the Executive may keep one copy of such items as s/he may reasonably expect to use to protect
his/her rights under this Agreement.
2. Nondisparagement. Executive hereby agrees that at no time will s/he make, or cause or assist
any other person to make, any statement or other communication to any third party which impugns or
attacks, or is otherwise critical of, the reputation, business or character of the Company or any
of its respective directors, officers or employees, as applicable.
3. General Release and Waiver of Claims.
3.1 Release. In consideration of the payments and benefits provided to the Executive
under the Employment Agreement and after consultation with counsel, the Executive and each of the
Executive’s respective heirs, executors, administrators, representatives, agents, insurers,
successors and assigns (collectively, the “Releasors”) hereby irrevocably and
unconditionally release and forever discharge the Company, its subsidiaries and affiliates and each
of their respective officers, employees, directors, shareholders and agents (“Releasees”)
from any and all claims, actions, causes of action, rights, judgments, obligations, damages,
demands, accountings or liabilities of whatever kind or character (collectively, “Claims”),
including, without limitation, any Claims under any U.S. Federal, state, local or non-U.S. law,
that the Releasors may have, or in the future may possess, arising out of (i) the Executive’s
employment relationship with and service as an employee, officer or director of the Company or any
subsidiaries or affiliated companies and the termination of such relationship or service, and (ii)
any event, condition, circumstance or obligation that occurred, existed or arose on or prior to the
date hereof; provided, however, that the Executive does not release, discharge or waive any rights
to (i) payments and benefits provided under the Employment Agreement that are contingent upon the
execution by the Executive of this Agreement and (ii) any indemnification rights the Executive may
have under the Employment Agreement, in accordance with the Company’s governance instruments or
under any director and officer liability insurance maintained by the Company with
respect to liabilities arising as a result of the Executive’s service as an officer and
employee of the Company. This Section 3.1 does not apply to any Claims that the Releasors may have
as of the date the Executive signs this Agreement arising under the Federal Age Discrimination in
Employment Act of 1967, as amended, and the applicable rules and regulations promulgated thereunder
(“ADEA”). Claims arising under ADEA are addressed in Section 3.3 of this Agreement.
3.2 [Section 1542 of the Civil Code of the State of California Waiver. The Executive
acknowledges that s/he may hereafter discover Claims or facts in addition to or different from
those which the Executive now knows or believes to exist with respect to the subject matter of this
release and which, if known or suspected at the time of executing this release, may have materially
affected this release or the Executive’s decision to enter into it. Nevertheless, the Releasors
hereby waive any right or Claim that might arise as a result of such different or additional Claims
or facts and the Releasors hereby expressly waive any and all rights and benefits conferred upon
the Releasors by the provisions of Section 1542 of the Civil Code of the State of California, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE
MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE
DEBTOR.]1
3.3 Specific Release of ADEA Claims. In further consideration of the payments and
benefits provided to the Executive under the Employment Agreement, the Releasors hereby
unconditionally release and forever discharge the Releasees from any and all Claims arising under
ADEA that the Releasors may have as of the date the Executive signs this Agreement. By signing
this Agreement, the Executive hereby acknowledges and confirms the following: (i) the Executive was
advised by the Company in connection with his/her termination to consult with an attorney of
his/her choice prior to signing this Agreement and to have such attorney explain to the Executive
the terms of this Agreement, including, without limitation, the terms relating to the Executive’s
release of claims arising under ADEA, and the Executive has in fact consulted with an attorney;
(ii) the Executive was given a period of not fewer than 21 days to consider the terms of this
Agreement and to consult with an attorney of his/her choosing with respect thereto; (iii) the
Executive knowingly and voluntarily accepts the terms of this Agreement; and (iv) the Executive is
providing this release and discharge only in exchange for consideration in addition to anything of
value to which the Executive is already entitled. The Executive also understands that s/he has
seven days following the date on which s/he signs this Agreement within which to revoke the release
contained in this paragraph, by providing the Company with a written notice of his/her revocation
of the release and waiver contained in this paragraph.
| 1 | For use only for Executives who work in California. |
2
3.4 No Assignment. The Executive represents and warrants that s/he has not assigned
any of the Claims being released under this Agreement. The Company may assign this Agreement, in
whole or in part, to any affiliated company or subsidiary of, or any successor in interest to, the
Company.
4. Proceedings.
4.1 General Agreement Relating to Proceedings. The Executive has not filed, and
except as provided in Sections 4.2 and 4.3, the Executive agrees not to initiate or cause to be
initiated on his/her behalf, any complaint, charge, claim or proceeding against the Releasees
before any local, state or federal agency, court or other body relating to his/her employment or
the termination of his/her employment, other than with respect to the obligations of the Company to
the Executive under the Employment Agreement (each, individually, a “Proceeding”), and
agrees not to participate voluntarily in any Proceeding. The Executive waives any right s/he may
have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any
Proceeding.
4.2 Proceedings Under ADEA. Section 4.1 shall not preclude the Executive from filing
any complaint, charge, claim or proceeding challenging the validity of the Executive’s waiver of
Claims arising under ADEA (which is set forth in Section 3.3 of this Agreement). However, both the
Executive and the Company confirm their belief that the Executive’s waiver of claims under ADEA is
valid and enforceable, and that their intention is that all claims under ADEA will be waived.
4.3 Certain Administrative Proceedings. Section 4.1 shall not preclude the Executive
from filing a charge with or participating in any administrative investigation or proceeding by the
Equal Employment Opportunity Commission or another Fair Employment Practices agency. The Executive
is, however, waiving his/her right to recover money in connection with any such charge or
investigation. The Executive is also waiving his/her right to recover money in connection with a
charge filed by any other entity or individual, or by any federal, state or local agency.
4.4 Remedies. In the event the Executive initiates or voluntarily participates in
any Proceeding in violation of this Agreement, or if s/he fails to abide by any of the terms of
this Agreement or his/her post-termination obligations contained in the Employment Agreement, or if
s/he revokes the ADEA release contained in Section 3.3 within the seven-day period provided under
Section 3.3, the Company may, in addition to any other remedies it may have, reclaim any amounts
paid to him/her under the termination provisions of the Employment Agreement or terminate any
benefits or payments that are subsequently due under the Employment Agreement, without waiving the
release granted herein. The Executive acknowledges and agrees that the remedy at law available to
the Company for breach of any of his/her post-termination obligations under the Employment
Agreement or his/her obligations under Sections 1 through 4 herein would be inadequate and that
damages flowing from such a breach may not readily be susceptible to measurement in monetary terms.
Accordingly, the Executive acknowledges, consents and agrees that, in addition to any other rights
or remedies that the Company may have at law or in equity or as may otherwise be set forth in the
Employment Agreement, the Company shall be entitled to seek a temporary restraining order or a
preliminary or permanent injunction,
3
or both, without bond or other security, restraining the Executive from breaching his/her
post-termination obligations under the Employment Agreement or his/her obligations under Sections 1
through 4 herein. Such injunctive relief in any court shall be available to the Company, in lieu
of, or prior to or pending determination in, any arbitration proceeding. The Executive understands
that by entering into this Agreement s/he shall be limiting the availability of certain remedies
that s/he may have against the Company and limiting also his/her ability to pursue certain claims
against the Company.
4.6 Severability Clause. In the event that any provision or part of this Agreement is
found to be invalid or unenforceable, only that particular provision or part so found, and not the
entire Agreement, shall be inoperative.
4.7 Nonadmission. Nothing contained in this Agreement shall be deemed or construed as an
admission of wrongdoing or liability on the part of the Company or the Executive.
5. GOVERNING LAW AND FORUM. The Executive and the Company agree that this Agreement and all
matters or issues arising out of or relating to the Executive’s employment with the Company shall
be governed by the laws of the State of [California/Texas] applicable to contracts entered into and
performed entirely therein.
6. Notices. All notices or communications hereunder shall be in writing, addressed as follows:
To the Company:
Ceres, Inc.
1500 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Xttn: [Chief Executive Officer/Chairman of the Board]
1500 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Xttn: [Chief Executive Officer/Chairman of the Board]
with a copy to:
To the Executive:
[ ]
[ ]
[ ]
[ ]
[ ]
All such notices shall be conclusively deemed to be received and shall be effective if sent by
hand delivery or nationally recognized courier, upon receipt.
4
THE EXECUTIVE ACKNOWLEDGES THAT S/HE HAS READ THIS AGREEMENT AND THAT S/HE FULLY KNOWS,
UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT S/HE HEREBY EXECUTES THE SAME AND MAKES THIS
AGREEMENT AND THE RELEASE AND AGREEMENTS PROVIDED FOR HEREIN VOLUNTARILY AND OF HIS/HER OWN FREE
WILL.
[SIGNATURE PAGES TO BE ADDED UPON TERMINATION OF EMPLOYMENT.]
5
Exhibit B
CONFIDENTIALITY, PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
CONFIDENTIALITY, PROPRIETARY INFORMATION & INVENTIONS
The following confirms an agreement between me and Ceres, Inc. (the “Company”), which is a
material part of the consideration for my employment (which term shall include, for purposes of
this Agreement, the performance of services for the Company either as a consultant or as an
employee) by the Company:
1. I recognize that the Company is engaged in a continuous program of research, development
and production respecting its business, present and future, including fields generally related to
its business. I understand that the Company possesses and will continue to possess information
that has been created, discovered or developed by or on behalf of the Company or which has
otherwise become known to the Company (including, without limitation, information created by,
discovered or developed by, or made known to, me during the period of or arising out of my
employment by the Company) and/or in which property rights have been assigned or otherwise conveyed
to the Company, which information has commercial value in the Company’s business. All of the
aforementioned information is hereinafter called “Proprietary Information.” By way of
illustration, but not limitation, Proprietary Information includes trade secrets, processes,
formulas, data, know-how, software programs, improvements, inventions (whether patentable or not),
techniques, marketing plans, market data or data concerning competitors’ strategies compiled by the
Company, forecasts, financial information, computer programs and other copyrightable material, the
compensation and terms of employment of other employees, customers and customer lists and other
information concerning the Company’s actual or anticipated business or which is received in
confidence by or for the Company from any other person or legal entity.
2. I understand that my employment creates a relationship of confidence and trust between me
and the Company with respect to any information:
(i) applicable to the business of the Company; or
(ii) applicable to the business of any client, customer, research or strategic partner, or
ally of, or joint venturer with, the Company (collectively, the “Ceres Related Entities”), which
may be made known to me by the Company or by any Ceres Related Entity, or learned by me during the
period of my employment.
3. In consideration of my employment by the Company and the compensation received (and to be
received) by me from the Company from time to time, I hereby agree as follows:
(a) All Proprietary Information shall be the sole property of the
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Company and its assigns, and
the Company and its assigns shall be the sole owner of all patents, copyrights, trade secret rights
and other rights in connection therewith. I hereby assign to the Company any rights I may have or
acquire in such Proprietary Information. At all times, both during my employment by the Company
and after its termination, I will keep in confidence and trust all Proprietary Information and I
will not use or disclose any Proprietary Information or anything relating to it without the prior
written consent of the Company, except as may be necessary and appropriate in the ordinary course
of performing my duties to the Company.
(b) All documents, charts, graphs, notebooks, customer lists, computer disks, tapes or
printouts and other printed, typewritten or handwritten documents, whether or not pertaining to
Proprietary Information (collectively, “Company Materials”) furnished to me by the Company or the
Business or produced by myself or others in connection with my employment shall be and remain the
sole property of the Company. I agree that during my employment by the Company, I will not remove
any Company Materials from the business premises of the Company or deliver any Company Materials to
any person or entity outside the Company, except as I am required to do in connection with
performing the duties of my employment. I further agree that, immediately upon the termination of
my employment by me or by the Company for any reason (or no reason), or during my employment if
requested by the Company, I will return to the Company all Company Materials, apparatus, equipment
and other physical property (including all reproductions and copies thereof) in my possession or to
which I have access, excepting only (i) my personal copies of records relating to my compensation;
(ii) my personal copies of any materials previously distributed generally to stockholders of the
Company; and (iii) my copy of this Agreement.
(c) I will promptly disclose to my immediate supervisor, with a copy to the Chief Executive
Officer of the Company, or any person designated by him, all “Inventions” (which term includes,
without limitation, improvements, inventions, works of authorship, trade secrets, technology,
computer programs, formulas, ideas, designs, processes, techniques, know-how and data, whether or
not patentable) made or conceived or reduced to practice or learned by me, either alone or jointly
with others, during the term of my employment and for one (1) year thereafter. I will not disclose
Inventions covered by Section 3.e to any person outside the Company unless I am requested to do so
by management personnel of the Company.
(d) I agree that I will not now or in the future disrupt, damage, impair or interfere with the
business of the Company or any Ceres Related Entity, whether by way of interfering with or raiding
its employees, disrupting its relationships with customers, agents,
vendors, distributors or representatives or otherwise. During the term of my employment
Page 2 of 5
and for
one (1) year thereafter, I will not encourage or solicit any employee of the Company or any Ceres
Related Entity to leave the Company or to work for any other employer or to devote less than all of
such employee’s efforts to the affairs of the Company, provided that the foregoing shall not affect
any responsibility I may have as an employee of the Company with respect to the bona fide hiring
and firing of Company personnel. During the term of my employment and for one (1) year thereafter,
I will not encourage or solicit any customer, client, agent, vendor, distributor, representative,
supplier or contractor of the Company to leave the Company, or to obtain services from other than
the Company, or to cease providing services to the Company.
(e) I agree that all Inventions which I make, conceive, reduce to practice, develop or have
developed (in whole or in part, either alone or jointly with others) and (i) which use or have used
equipment, supplies, facilities or trade secret information of the Company, or (ii) which use or
have used the hours for which I am to be or was compensated by the Company, or (iii) which relate
to the business of the Company or to its actual or demonstrably anticipated research and
development or (iv) which result, in whole or in part, from work performed by me for the Company
shall be the sole property of the Company and its assigns and the Company and its assigns, shall,
in any such case, be the sole owner of all patents, copyrights and other rights in connection
therewith. I hereby assign to the Company any rights I may have or acquire in such Inventions. I
further agree as to all such Inventions and improvements to assist the Company in every proper way
(but at the Company’s expense) to obtain and from time to time to enforce patents, copyrights or
other rights on said Inventions and improvements in any and all countries and to that end I will
execute all documents for use in applying for and obtaining such patents and copyrights thereon and
enforcing the same, as the Company may desire, together with any assignments thereof to the Company
or persons designated by it. My obligation to assist the Company in obtaining and enforcing
patents, copyrights or other rights for such Inventions and improvements in any and all countries
shall continue beyond the termination of my employment, but the Company shall compensate me at a
reasonable rate after such termination for time actually spent by me at the Company’s request on
such assistance. In the event that the Company is unable for any reason whatsoever to secure my
signature to any lawful and necessary documents required to apply for or execute any patent,
copyright or other applications with respect to such Inventions and improvements (including
renewals, extensions, continuations, divisions or continuations in part thereof), I hereby
irrevocably designate and appoint the Company and its duly authorized officers and agents, and each
of them, as my agents and attorneys-in-fact to act for and in my behalf and instead of me, to
execute and file any such application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or other rights thereof with the same legal force
and effect as if executed by me.
(f) As a matter of record, listed on page 4 of this Agreement is a
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complete list of all
existing Inventions or improvements relevant to the subject matter of my employment by the Company
or my employment with the Business to which I claim ownership as of the date of this Agreement and
that I desire to specifically clarify are not subject to this Agreement and I covenant that such
list is complete. If nothing is listed in this Agreement, I represent that I have no such
Inventions and improvements at the time of signing this Agreement.
(g) I represent that my performance of all the terms and provisions of this Agreement will not
breach any agreement to keep in confidence proprietary information acquired by me in confidence or
in trust prior to my employment by the Company or performance of services for the Company. I have
not entered into, and I agree I will not enter into, any agreement, either written or oral, in
conflict herewith.
(h) I represent that the execution of this Agreement, my employment with the Company and my
performance of my proposed duties to the Company in the development of its business will not
violate any obligations I may have to any former employer.
(i) Notwithstanding the foregoing, if employee is employed by the Company in the State of
California, then this Agreement does not require assignment of any Invention which an employee
cannot be obligated to assign under Section 2870 of the California Labor Code (hereinafter called
“Section 2870”). However, I will disclose any Inventions as required by Section 3(c) hereof
regardless of whether I believe the Invention is protected by Section 2870 in order to permit the
Company to engage in a review process to determine such issues as may arise. Such disclosure shall
be received in confidence by the Company.
(j) I understand that this Agreement does not alter the at-will nature of my employment and
that I have the right to resign from my employment and the Company has the right to terminate my
employment at any time, for any reason, with or without cause unless I have a specific written
contract which states otherwise signed by the President of the Company.
4. This Agreement shall be binding upon me, my heirs, executors, assigns and administrators
and shall inure to the benefit of the Company, its subsidiaries, affiliates, successors and
assigns. Should any provision be deemed unenforceable, it shall be severed from the Agreement and
the remaining provisions shall remain in full force and effect.
Page 4 of 5
I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND VOLUNTARILY ACCEPT THE OBLIGATIONS
WHICH IT IMPOSES UPON ME WITHOUT RESERVATION.
Date: 26th June 1998
|
/s/ Xxxxxxx Xxxxxxx
|
|||
| Employee/Consultant | ||||
| Xxxxxxx Xxxxxxx
|
The following is a complete list of all existing Inventions or Improvements pursuant to paragraph
3(f):
If nothing is listed in this space, I represent I have no Inventions or Improvements.
Page 5 of 5
