EXHIBIT 10.1.2
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
DELTAGEN, INC.
1998 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
DELTAGEN, INC., a Delaware corporation (the "Company"), hereby
grants an Option to purchase shares of its common stock ("Shares") to the
Optionee named below. The terms and conditions of the Option are set forth
in this cover sheet, in the attachment and in the Company's 1998 Stock
Incentive Plan (the "Plan").
Date of Grant: _______________
Name of Optionee: ____________________________________________________________
Optionee's Social Security Number:____________________________________________
Number of Shares Covered by Option: _________________________________________
Exercise Price per Share: ___________________________________________________
[must be at least 100% fair market value on Date of Grant]
Vesting Start Date: _________________________________________________________
__ Check here if Optionee is a 10% owner (so that exercise price must be
110% of fair market value and term will not exceed 5 years).
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH IS
ALSO ATTACHED.
Optionee: ____________________________________________________________________
(Signature)
Company: _____________________________________________________________________
(Signature)
Title: _______________________________________________________________________
DELTAGEN, INC.
1998 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
INCENTIVE This Option is intended to be an incentive stock
STOCK OPTION option under section 422 of the Internal Revenue
Code and will be interpreted accordingly.
VESTING Your Option vests monthly over a four-year
period beginning on the Vesting Start Date as
shown on the cover sheet. Accordingly, this
Option vests at a rate of 2.083333% of the
Shares covered by the Option per month from the
Vesting Start Date. The number of Shares which
vest under this Option at the Exercise Price
shall be equal to the product of the number of
full months of your continuous employment with
the Company ("Service") (including any approved
leaves of absence) from the Vesting Start Date
times the number of Shares covered by this
Option times .02083333. Notwithstanding the
above, no Shares will vest until you have
performed twelve months of Service from the
Vesting Start Date. The resulting number of
Shares will be rounded to the nearest whole
number. No additional Shares will vest after
your Service has terminated for any reason.
You should note that you may exercise the Option
prior to vesting. In that case, the Company has a
right to repurchase the unvested shares at the
original exercise price if you terminate employment
before vesting in all shares you purchased. Also,
if you exercise before vesting, you should consider
making an 83(b) election. Please see the attached
Tax Summary. THE 83(b) ELECTION MUST BE FILED
WITHIN 30 DAYS OF THE DATE YOU EXERCISE.
TERM Your Option will expire in any event at the close
of business at Company headquarters on the day
before the tenth anniversary (fifth anniversary for
a 10% owner) of the Date of Grant, as shown on the
cover sheet. (It will expire earlier if your
Service terminates, as described below.)
REGULAR TERMINATION If your Service terminates for any reason except
death or Disability, your Option will expire at
the close of business at Company headquarters on
the 30th day after your termination date. During
that 30-day period, you may exercise that
portion of your Option that was vested on your
termination date.
DEATH If you die while in Service with the Company, your
Option will expire at the close of business at
Company headquarters on the date six months after
the date of death. During that six-month period,
your estate or heirs may exercise that portion of
your Option that was vested on the date of death.
DISABILITY If your Service terminates because of your
Disability, your Option will expire at the close
of business at Company headquarters on the date
six months after your termination date.
(However, if your Disability is not expected to
result in death or to last for a continuous
period of at least 12 months, your Option will
be eligible for ISO tax treatment only if it is
exercised within three months following the
termination of your Service.) During that
six-month period, you may exercise that portion
of your Option that was vested on the date of
your Disability.
"Disability" means that you are unable to engage in
any substantial gainful activity by reason of any
medically determinable physical or mental
impairment.
LEAVES OF ABSENCE For purposes of this Option, your Service does
not terminate when you go on a BONA FIDE leave
of absence that was approved by the Company in
writing, if the terms of the leave provide for
continued service crediting, or when continued
service crediting is required by applicable law.
However, your Service will be treated as
terminating 90 days after you went on leave,
unless your right to return to active work is
guaranteed by law or by a contract. Your
Service terminates in any event when the
approved leave ends unless you immediately
return to active work. The Company determines
which leaves count for this purpose, and when
your Service terminates for all purposes under
the Plan. The Company also determines the
extent to which you may exercise the vested
portion of your Option during a leave of absence.
NOTICE OF EXERCISE When you wish to exercise this Option, you must
execute the Notice of Exercise/Common Stock
Purchase Agreement (and, if exercise is prior to
vesting, you must also execute Exhibits C and
D). If you exercise by means of a promissory
note (as permitted by the Option Agreement), you
must execute Exhibits A and B also. Your
exercise will be effective when it is received
by the Company. If someone else wants to
exercise this Option after your death, that
person must prove to the Company's satisfaction
that he or she is entitled to do so.
FORM OF PAYMENT When you submit the Notice of Exercise
and Common Stock Purchase Agreement, you must
include payment of the Exercise Price for the
Shares you are purchasing. Payment may be made in
one (or a combination) of the following forms:
- Your personal check, a cashier's check or
a money order.
- Shares which you have owned for six months
and which are surrendered to the Company.
The value of the Shares, determined as of
the effective date of the Option exercise,
will be applied to the Exercise Price.
- To the extent that a public market for the
Shares exists as determined by the
Company, by delivery (on a form prescribed
by the Committee) of an irrevocable
direction to a securities broker to sell
Shares and to deliver all or part of the
sale proceeds to the Company in payment of
the aggregate Exercise Price.
- A personal check, cashier's check, or
money order for the par value of the
Shares purchased and a full-recourse
promissory note for the balance.
- Any other form of legal consideration
approved by the Committee.
WITHHOLDING You will not be allowed to exercise this Option
TAXES unless you make acceptable arrangements to pay
any withholding or other taxes that may be due
as a result of the Option exercise or the sale of
Shares acquired upon exercise of this Option.
RESTRICTIONS ON EXERCISE By signing this Agreement, you agree not to
AND RESALE exercise this Option or sell any Shares
acquired upon exercise of this Option at
a time when applicable laws, regulations or
Company or underwriter trading policies prohibit
exercise or sale. In particular, the Company
shall have the right to designate one or more
periods of time, each of which shall not exceed
180 days in length, during which this Option
shall not be exercisable if the Company
determines (in its sole discretion) that such
limitation on exercise could in any way
facilitate a lessening of any restriction on
transfer pursuant to the Securities Act or any
state securities laws with respect to any
issuance of securities by the Company,
facilitate the registration or qualification of
any securities by the Company under the
Securities Act or any state securities laws, or
facilitate the perfection of any exemption from
the registration or qualification requirements
of the Securities Act or any applicable state
securities laws for the issuance or transfer of
any securities.
Such limitation on exercise shall not alter the
vesting schedule set forth in this Agreement
other than to limit the periods during which
this Option shall be exercisable.
If the sale of Shares under the Plan is not
registered under the Securities Act of 1933, as
amended (the "Securities Act"), but an exemption is
available which requires an investment or other
representation, you shall represent and agree at
the time of exercise that the Shares being acquired
upon exercise of this Option are being acquired for
investment, and not with a view to the sale or
distribution thereof, and shall make such other
representations as are deemed necessary or
appropriate by the Company and its counsel.
THE COMPANY'S RIGHT OF In the event that you propose to sell, pledge or
FIRST REFUSAL otherwise transfer to a third party any Shares
acquired under this Agreement, or any interest in
such Shares, the Company shall have the "Right
of First Refusal" with respect to all (and not
less than all) of such Shares. If you desire to
transfer Shares acquired under this Agreement,
you must give a written "Transfer Notice" to the
Company describing fully the proposed transfer,
including the number of Shares proposed to be
transferred, the proposed transfer price and the
name and address of the proposed transferee. The
Transfer Notice shall be signed both by you and
by the proposed transferee and must constitute a
binding commitment of both parties to the
transfer of the Shares.
The Company and its assignees shall have the right
to purchase all, and not less than all, of the
Shares on the terms described in the Transfer
Notice (subject, however, to any change in such
terms permitted in the next paragraph) by delivery
of a Notice of Exercise of the Right of First
Refusal within 30 days after the date when the
Transfer Notice was received by the Company. The
Company's rights under this Subsection shall be
freely assignable, in whole or in part.
If the Company fails to exercise its Right of First
Refusal within 30 days after the date when it
received the Transfer Notice, you may, not later
than six months following receipt of the Transfer
Notice by the Company, conclude a transfer of the
Shares subject to the Transfer Notice on the terms
and conditions described in the Transfer Notice.
Any proposed transfer on terms and conditions
different from those described in the Transfer
Notice, as well as any subsequent proposed transfer
by you, shall again be subject to the Right of
First Refusal and shall require compliance with the
procedure described in the paragraph above. If the
Company exercises its Right of First Refusal, you
and the
Company (or its assignees) shall consummate
the sale of the Shares on the terms set forth in
the Transfer Notice.
The Company's Right of First Refusal shall inure to
the benefit of its successors and assigns and shall
be binding upon any transferee of the Shares.
TRANSFER OF OPTION Prior to your death, only you may exercise this
Option. You cannot transfer or assign this
Option. For instance, you may not sell this
Option or use it as security for a loan. If you
attempt to do any of these things, this Option
will immediately become invalid. You may,
however, dispose of this Option in your will.
Regardless of any marital property settlement
agreement, the Company is not obligated to honor a
Notice of Exercise from your spouse or former
spouse, nor is the Company obligated to recognize
such individual's interest in your Option in any
other way.
RETENTION RIGHTS This Agreement does not give you the right to
be retained by the Company in any capacity. The
Company reserves the right to terminate your
Service at any time and for any reason.
SHAREHOLDER RIGHTS Neither you, nor your estate or heirs, have
any rights as a shareholder of the Company until a
certificate for the Shares acquired upon exercise
of this Option has been issued. No adjustments are
made for dividends or other rights if the
applicable record date occurs before your stock
certificate is issued, except as described in the
Plan.
ADJUSTMENTS In the event of a stock split, a stock dividend or
a similar change in the Company's Stock, the number
of Shares covered by this Option and the Exercise
Price per share may be adjusted pursuant to the
Plan. Your Option shall be subject to the terms of
the agreement of merger, liquidation or
reorganization in the event the Company is subject
to such corporate activity.
LEGENDS All certificates representing the Shares issued
upon exercise of this Option shall, where
applicable, have endorsed thereon the following
legends:
"THESE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE. THEY MAY NOT BE SOLD,
OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT AND QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION AND
QUALIFICATION ARE NOT REQUIRED.
THIS CERTIFICATE AND THE SHARES
REPRESENTED HEREBY MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN
ANY MANNER DISPOSED OF EXCEPT IN
CONFORMITY WITH THE TERMS OF A WRITTEN
AGREEMENT BETWEEN THE CORPORATION AND THE
REGISTERED HOLDER OF THE SHARES (OR THE
PREDECESSOR IN INTEREST TO THE SHARES).
SUCH AGREEMENT GRANTS CERTAIN REPURCHASE
RIGHTS AND RIGHTS OF FIRST REFUSAL TO THE
CORPORATION (OR ITS ASSIGNEES) UPON THE
SALE, ASSIGNMENT, TRANSFER, ENCUMBRANCE OR
OTHER DISPOSITION OF THE CORPORATION'S
SHARES. A COPY OF SUCH AGREEMENT MAY BE
OBTAINED WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE SECRETARY OF THE
CORPORATION."
APPLICABLE LAW This Agreement will be interpreted and enforced
under the laws of the State of California (without
regard to their choice of law provisions).
THE PLAN AND OTHER The text of the Plan is incorporated in this
AGREEMENTS Agreement by reference. Certain capitalized terms
used in this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire
understanding between you and the Company regarding
this Option. Any prior agreements, commitments or
negotiations concerning this Option are superseded.
By signing the cover sheet of this Agreement, you agree to all of the terms
and conditions described above and in the Plan. You also acknowledge that
you have read Section 11, "Purchaser's Investment Representation," in
Notice of Exercise and Common Stock
Purchase Agreement, and that you can, and hereby do, make the same
representations with respect to the grant of this Option.
