{"id":38403,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/2000-stock-incentive-plan-agraquest-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"2000-stock-incentive-plan-agraquest-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/2000-stock-incentive-plan-agraquest-inc.html","title":{"rendered":"2000 Stock Incentive Plan &#8211; AgraQuest Inc."},"content":{"rendered":"<pre>                                AGRAQUEST, INC.\n\n                           2000 STOCK INCENTIVE PLAN\n\n                as Amended and Restated as of January 12, 2001\n\n     1.   Purposes of the Plan. The purposes of this Stock Incentive Plan are to\n          --------------------\nattract and retain the best available personnel, to provide additional incentive\nto Employees, Directors and Consultants and to promote the success of the\nCompany's business.\n\n     2.   Definitions. As used herein, the following definitions shall apply:\n          -----------\n\n          (a)  \"Administrator\" means the Board or any of the Committees\n                -------------\nappointed to administer the Plan.\n\n          (b)  \"Affiliate\" and \"Associate\" shall have the respective meanings\n                ---------       ---------\nascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.\n\n          (c)  \"Applicable Laws\" means the legal requirements relating to the\n                ---------------\nadministration of stock incentive plans, if any, under applicable provisions of\nfederal securities laws, state corporate and securities laws, the Code, the\nrules of any applicable stock exchange or national market system, and the rules\nof any foreign jurisdiction applicable to Awards granted to residents therein.\n\n          (d)  \"Award\" means the grant of an Option, SAR, Dividend Equivalent\n                -----\nRight, Restricted Stock, Performance Unit, Performance Share, or other right or\nbenefit under the Plan.\n\n          (e)  \"Award Agreement\" means the written agreement evidencing the\n                ---------------\ngrant of an Award executed by the Company and the Grantee, including any\namendments thereto.\n\n          (f)  \"Board\" means the Board of Directors of the Company.\n                -----\n\n          (g)  \"Cause\" means, with respect to the termination by the Company or\n                -----\na Related Entity of the Grantee's Continuous Service, that such termination is\nfor \"Cause\" as such term is expressly defined in a then-effective written\nagreement between the Grantee and the Company or such Related Entity, or in the\nabsence of such then-effective written agreement and definition, is based on, in\nthe determination of the Administrator, the Grantee's: (i) refusal or failure to\nact in accordance with any specific, lawful direction or order of the Company or\na Related Entity; (ii) unfitness or unavailability for service or unsatisfactory\nperformance (other than as a result of Disability); (iii) performance of any act\nor failure to perform any act in bad faith and to the detriment of the Company\nor a Related Entity; (iv) dishonesty, intentional misconduct or material breach\nof any agreement with the Company or a Related Entity; or (v) commission of a\ncrime involving dishonesty, breach of trust, or physical or emotional harm to\nany person. At least 30 days prior to the termination of the Grantee's\nContinuous Service pursuant to (i) or (ii) above, the Administrator shall\nprovide the Grantee with notice of the \n\n \nCompany's or such Related Entity's intent to terminate, the reason therefor, and\nan opportunity for the Grantee to cure such defects in his or her service to the\nCompany's or such Related Entity's satisfaction. During this 30 day (or longer)\nperiod, no Award issued to the Grantee under the Plan may be exercised or\npurchased.\n\n          (h)  \"Change in Control\" means a change in ownership or control of the\n                -----------------\nCompany effected through either of the following transactions:\n\n               (i)  the direct or indirect acquisition by any person or related\ngroup of persons (other than an acquisition from or by the Company or by a\nCompany-sponsored employee benefit plan or by a person that directly or\nindirectly controls, is controlled by, or is under common control with, the\nCompany) of beneficial ownership (within the meaning of Rule 13d-3 of the\nExchange Act) of securities possessing more than fifty percent (50%) of the\ntotal combined voting power of the Company's outstanding securities pursuant to\na tender or exchange offer made directly to the Company's stockholders which a\nmajority of the Continuing Directors who are not Affiliates or Associates of the\nofferor do not recommend such stockholders accept, or\n\n               (ii) a change in the composition of the Board over a period of\nthirty-six (36) months or less such that a majority of the Board members\n(rounded up to the next whole number) ceases, by reason of one or more contested\nelections for Board membership, to be comprised of individuals who are\nContinuing Directors.\n\n          (i)  \"Code\" means the Internal Revenue Code of 1986, as amended.\n                ----                                                      \n\n          (j)  \"Committee\" means any committee appointed by the Board to\n                ---------\nadminister the Plan.\n\n          (k)  \"Common Stock\" means the common stock of the Company.\n                ------------                                        \n\n          (l)  \"Company\" means AgraQuest, Inc., a Delaware corporation.\n                -------                                                \n\n          (m)  \"Consultant\" means any person (other than an Employee or a\n                ----------\nDirector, solely with respect to rendering services in such person's capacity as\na Director) who is engaged by the Company or any Related Entity to render\nconsulting or advisory services to the Company or such Related Entity.\n\n          (n)  \"Continuing Directors\" means members of the Board who either (i)\n                -------------------- \nhave been Board members continuously for a period of at least thirty-six (36)\nmonths or (ii) have been Board members for less than thirty-six (36) months and\nwere elected or nominated for election as Board members by at least a majority\nof the Board members described in clause (i) who were still in office at the\ntime such election or nomination was approved by the Board.\n\n          (o)  \"Continuous Service\" means that the provision of services to the\n                ------------------ \nCompany or a Related Entity in any capacity of Employee, Director or Consultant,\nis not interrupted or \n\n                                      -2-\n\n \nterminated. Continuous Service shall not be considered interrupted in the case\nof (i) any approved leave of absence, (ii) transfers among the Company, any\nRelated Entity, or any successor, in any capacity of Employee, Director or\nConsultant, or (iii) any change in status as long as the individual remains in\nthe service of the Company or a Related Entity in any capacity of Employee,\nDirector or Consultant (except as otherwise provided in the Award Agreement). An\napproved leave of absence shall include sick leave, military leave, or any other\nauthorized personal leave. For purposes of each Incentive Stock Option granted\nunder the Plan, if such leave exceeds ninety (90) days, and reemployment upon\nexpiration of such leave is not guaranteed by statute or contract, then the\nIncentive Stock Option shall be treated as a Non-Qualified Stock Option on the\nday three (3) months and one (1) day following the expiration of such ninety\n(90) day period.\n\n          (p)  \"Corporate Transaction\" means any of the following transactions:\n                ---------------------  \n\n               (i)    a merger or consolidation in which the Company is not the\nsurviving entity, except for a transaction the principal purpose of which is to\nchange the state in which the Company is incorporated;\n\n               (ii)   the sale, transfer or other disposition of all or\nsubstantially all of the assets of the Company (including the capital stock of\nthe Company's subsidiary corporations);\n\n               (iii)  approval by the Company's shareholders of any plan or\nproposal for the complete liquidation or dissolution of the Company;\n\n               (iv)   any reverse merger in which the Company is the surviving\nentity but in which securities possessing more than fifty percent (50%) of the\ntotal combined voting power of the Company's outstanding securities are\ntransferred to a person or persons different from those who held such securities\nimmediately prior to such merger; or\n\n               (v)    acquisition by any person or related group of persons\n(other than the Company or by a Company-sponsored employee benefit plan) of\nbeneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of\nsecurities possessing more than fifty percent (50%) of the total combined voting\npower of the Company's outstanding securities (whether or not in a transaction\nalso constituting a Change in Control), but excluding any such transaction that\nthe Administrator determines shall not be a Corporate Transaction.\n\n          (q)  \"Covered Employee\" means an Employee who is a \"covered employee\" \n                ----------------\nunder Section 162(m)(3) of the Code.\n\n          (r)  \"Director\" means a member of the Board or the board of directors\n                --------  \nof any Related Entity.\n\n          (s)  \"Disability\" means a Grantee would qualify for benefit payments\n                ----------  \nunder the long-term disability policy of the Company or the Related Entity to\nwhich the Grantee \n\n                                      -3-\n\n \nprovides services regardless of whether the Grantee is covered by such policy.\nIf the Company or the Related Entity to which the Grantee provides service does\nnot have a long-term disability plan in place, \"Disability\" means that a Grantee\nis permanently unable to carry out the responsibilities and functions of the\nposition held by the Grantee by reason of any medically determinable physical or\nmental impairment. A Grantee will not be considered to have incurred a\nDisability unless he or she furnishes proof of such impairment sufficient to\nsatisfy the Administrator in its discretion.\n\n          (t)  \"Dividend Equivalent Right\" means a right entitling the Grantee\n                -------------------------  \nto compensation measured by dividends paid with respect to Common Stock.\n\n          (u)  \"Employee\" means any person, including an Officer or Director,\n                --------  \nwho is an employee of the Company or any Related Entity. The payment of a\ndirector's fee by the Company or a Related Entity shall not be sufficient to\nconstitute \"employment\" by the Company.\n\n          (v)  \"Exchange Act\" means the Securities Exchange Act of 1934, as\n                ------------  \namended.\n\n          (w)  \"Fair Market Value\" means, as of any date, the value of Common\n                -----------------  \nStock determined as follows:\n\n               (i)  Where there exists a public market for the Common Stock, the\nFair Market Value shall be (A) the closing price for a Share for the last market\ntrading day prior to the time of the determination (or, if no closing price was\nreported on that date, on the last trading date on which a closing price was\nreported) on the stock exchange determined by the Administrator to be the\nprimary market for the Common Stock or the Nasdaq National Market, whichever is\napplicable or (B) if the Common Stock is not traded on any such exchange or\nnational market system, the average of the closing bid and asked prices of a\nShare on the Nasdaq Small Cap Market for the day prior to the time of the\ndetermination (or, if no such prices were reported on that date, on the last\ndate on which such prices were reported), in each case, as reported in The Wall\nStreet Journal or such other source as the Administrator deems reliable; or\n\n               (ii) In the absence of an established market for the Common Stock\nof the type described in (i), above, the Fair Market Value thereof shall be\ndetermined by the Administrator in good faith.\n\n          (x)  \"Good Reason\" means the occurrence after a Corporate Transaction,\n                -----------  \nChange in Control or a Related Entity Disposition of any of the following events\nor conditions unless consented to by the Grantee:\n\n               (i)  (A) a change in the Grantee's status, title, position or\nresponsibilities which represents an adverse change from the Grantee's status,\ntitle, position or responsibilities as in effect at any time within six (6)\nmonths preceding the date of a Corporate Transaction, Change in Control or\nRelated Entity Disposition or at any time thereafter or (B) the assignment to\nthe Grantee of any duties or responsibilities which are inconsistent with the\nOptionee's status, title, position or responsibilities as in effect at any time\nwithin six (6) months \n\n                                      -4-\n\n \npreceding the date of a Corporate Transaction, Change in Control or Related\nEntity Disposition or at any time thereafter;\n\n               (ii)   reduction in the Grantee's base salary to a level below\nthat in effect at any time within six (6) months preceding the date of a\nCorporate Transaction, Change in Control or Related Entity Disposition or at any\ntime thereafter; or\n\n               (iii)  requiring the Grantee to be based at any place outside a\n50-mile radius from the Grantee's job location or residence prior to the\nCorporate Transaction, Change in Control or Related Entity Disposition, except\nfor reasonably required travel on business which is not materially greater than\nsuch travel requirements prior to the Corporate Transaction, Change in Control\nor Related Entity Disposition. \"Grantee\" means an Employee, Director or\n                                -------  \nConsultant who receives an Award pursuant to an Award Agreement under the Plan.\n\n          (y)  \"Immediate Family\" means any child, stepchild, grandchild,\n                ----------------  \nparent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,\nmother-in-law, father-in-law, son-in law, daughter-in-law, brother-in-law, or\nsister-in-law, including adoptive relationships, any person sharing the\nGrantee's household (other than a tenant or employee), a trust in which these\npersons have more than fifty percent (50%) of the beneficial interest, a\nfoundation in which these persons (or the Grantee) control the management of\nassets, and any other entity in which these persons (or the Grantee) own more\nthan fifty percent (50%) of the voting interests.\n\n          (z)  \"Incentive Stock Option\" means an Option intended to qualify as\n                ----------------------  \nan incentive stock option within the meaning of Section 422 of the Code.\n\n          (aa) \"Non-Qualified Stock Option\" means an Option not intended to\n                --------------------------  \nqualify as an Incentive Stock Option.\n\n          (bb) \"Officer\" means a person who is an officer of the Company or a\n                -------  \nRelated Entity within the meaning of Section 16 of the Exchange Act and the\nrules and regulations promulgated thereunder.\n\n          (cc) \"Option\" means an option to purchase Shares pursuant to an Award\n                ------  \nAgreement granted under the Plan.\n\n          (dd) \"Parent\" means a \"parent corporation,\" whether now or hereafter\n                ------  \nexisting, as defined in Section 424(e) of the Code.\n\n          (ee) \"Performance - Based Compensation\" means compensation qualifying\n                --------------------------------  \nas \"performance-based compensation\" under Section 162(m) of the Code.\n\n          (ff) \"Performance Shares\" means Shares or an Award denominated in\n                ------------------  \nShares which may be earned in whole or in part upon attainment of performance\ncriteria established by the Administrator.\n\n                                      -5-\n\n \n          (gg) \"Performance Units\" means an Award which may be earned in whole\n                -----------------  \nor in part upon attainment of performance criteria established by the\nAdministrator and which may be settled for cash, Shares or other securities or a\ncombination of cash, Shares or other securities as established by the\nAdministrator.\n\n          (hh) \"Plan\" means this 2000 Stock Incentive Plan, as amended and\n                ----  \nrestated.\n\n          (ii) \"Registration Date\" means the first to occur of (i) the closing\n                -----------------  \nof the first sale to the general public of (A) the Common Stock or (B) the same\nclass of securities of a successor corporation (or its Parent) issued pursuant\nto a Corporate Transaction in exchange for or in substitution of the Common\nStock, pursuant to a registration statement filed with and declared effective by\nthe Securities and Exchange Commission under the Securities Act of 1933, as\namended; and (ii) in the event of a Corporate Transaction, the date of the\nconsummation of the Corporate Transaction if the same class of securities of the\nsuccessor corporation (or its Parent) issuable in such Corporate Transaction\nshall have been sold to the general public pursuant to a registration statement\nfiled with and declared effective by the Securities and Exchange Commission\nunder the Securities Act of 1933, as amended on or prior to the date of\nconsummation of such Corporate Transaction.\n\n          (jj) \"Related Entity\" means any Parent, Subsidiary and any business,\n                --------------  \ncorporation, partnership, limited liability company or other entity in which the\nCompany, a Parent or a Subsidiary holds a substantial ownership interest,\ndirectly or indirectly.\n\n          (kk) \"Related Entity Disposition\" means the sale, distribution or\n                --------------------------  \nother disposition by the Company, a Parent or a Subsidiary of all or\nsubstantially all of the interests of the Company, a Parent or a Subsidiary in\nany Related Entity effected by a sale, merger or consolidation or other\ntransaction involving that Related Entity or the sale of all or substantially\nall of the assets of that Related Entity, other than any Related Entity\nDisposition to the Company, a Parent or a Subsidiary.\n\n          (ll) \"Restricted Stock\" means Shares issued under the Plan to the\n                ----------------  \nGrantee for such consideration, if any, and subject to such restrictions on\ntransfer, rights of first refusal, repurchase provisions, forfeiture provisions,\nand other terms and conditions as established by the Administrator.\n\n          (mm) \"Rule 16b-3\" means Rule 16b-3 promulgated under the Exchange Act\n                ----------  \nor any successor thereto.\n\n          (nn) \"SAR\" means a stock appreciation right entitling the Grantee to\n                ---\nShares or cash compensation, as established by the Administrator, measured by\nappreciation in the value of Common Stock.\n\n          (oo) \"Share\" means a share of the Common Stock.\n                -----                                    \n\n                                      -6-\n\n \n          (pp) \"Subsidiary\" means a \"subsidiary corporation,\" whether now or\n                ----------                                                  \nhereafter existing, as defined in Section 424(f) of the Code.\n\n     3.   Stock Subject to the Plan.\n          ------------------------- \n\n          (a)  Subject to the provisions of Section 10, below, the maximum\naggregate number of Shares which may be issued pursuant to Awards initially\nshall be 2,000,000 Shares, and commencing with the first business day of each\ncalendar year thereafter beginning with January 1, 2003, such maximum aggregate\nnumber of Shares shall be increased by 250,000 Shares. Notwithstanding the\nforegoing, subject to the provisions of Section 10, below, the maximum aggregate\nnumber of Shares available for grant of Incentive Stock Options shall be\n2,000,000 Shares, and such number shall not be subject to annual adjustment as\ndescribed above. The Shares to be issued pursuant to Awards may be authorized,\nbut unissued, or reacquired Common Stock.\n\n          (b)  Any Shares covered by an Award (or portion of an Award) which is\nforfeited or canceled, expires or is settled in cash, shall be deemed not to\nhave been issued for purposes of determining the maximum aggregate number of\nShares which may be issued under the Plan. Shares that actually have been issued\nunder the Plan pursuant to an Award shall not be returned to the Plan and shall\nnot become available for future issuance under the Plan, except that if unvested\nShares are forfeited, or repurchased by the Company at their original purchase\nprice, such Shares shall become available for future grant under the Plan.\n\n     4.   Administration of the Plan.\n          -------------------------- \n\n          (a)  Plan Administrator.\n               ------------------ \n\n               (i)    Administration with Respect to Directors and Officers.\n                      ----------------------------------------------------- \nWith respect to grants of Awards to Directors or Employees who are also Officers\nor Directors of the Company, the Plan shall be administered by (A) the Board or\n(B) a Committee designated by the Board, which Committee shall be constituted in\nsuch a manner as to satisfy the Applicable Laws and to permit such grants and\nrelated transactions under the Plan to be exempt from Section 16(b) of the\nExchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall\ncontinue to serve in its designated capacity until otherwise directed by the\nBoard.\n\n               (ii)   Administration With Respect to Consultants and Other\n                      ----------------------------------------------------\nEmployees. With respect to grants of Awards to Employees or Consultants who are\n---------\nneither Directors nor Officers of the Company, the Plan shall be administered by\n(A) the Board or (B) a Committee designated by the Board, which Committee shall\nbe constituted in such a manner as to satisfy the Applicable Laws. Once\nappointed, such Committee shall continue to serve in its designated capacity\nuntil otherwise directed by the Board. The Board may authorize one or more\nOfficers to grant such Awards and may limit such authority as the Board\ndetermines from time to time.\n\n               (iii)  Administration With Respect to Covered Employees.\n                      ------------------------------------------------\nNotwithstanding the foregoing, grants of Awards to any Covered Employee intended\nto qualify \n\n                                      -7-\n\n \nas Performance-Based Compensation shall be made only by a Committee (or\nsubcommittee of a Committee) which is comprised solely of two or more Directors\neligible to serve on a committee making Awards qualifying as Performance-Based\nCompensation. In the case of such Awards granted to Covered Employees,\nreferences to the \"Administrator\" or to a \"Committee\" shall be deemed to be\nreferences to such Committee or subcommittee.\n\n               (iv)   Administration Errors. In the event an Award is granted in\n                      ---------------------\na manner inconsistent with the provisions of this subsection (a), such Award\nshall be presumptively valid as of its grant date to the extent permitted by the\nApplicable Laws.\n\n          (b)  Powers of the Administrator. Subject to Applicable Laws and the\n               ---------------------------\nprovisions of the Plan (including any other powers given to the Administrator\nhereunder), and except as otherwise provided by the Board, the Administrator\nshall have the authority, in its discretion:\n\n               (i)    to select the Employees, Directors and Consultants to whom\nAwards may be granted from time to time hereunder;\n\n               (ii)   to determine whether and to what extent Awards are granted\nhereunder;\n\n               (iii)  to determine the number of Shares or the amount of other\nconsideration to be covered by each Award granted hereunder;\n\n               (iv)   to approve forms of Award Agreements for use under the\nPlan;\n\n               (v)    to determine the terms and conditions of any Award granted\nhereunder;\n\n               (vi)   to amend the terms of any outstanding Award granted under\nthe Plan, provided that any amendment that would adversely affect the Grantee's\nrights under an outstanding Award shall not be made without the Grantee's\nwritten consent;\n\n               (vii)  to construe and interpret the terms of the Plan and Awards\ngranted pursuant to the Plan, including without limitation, any notice of Award\nor Award Agreement, granted pursuant to the Plan;\n\n               (viii) to establish additional terms, conditions, rules or\nprocedures to accommodate the rules or laws of applicable foreign jurisdictions\nand to afford Grantees favorable treatment under such laws; provided, however,\nthat no Award shall be granted under any such additional terms, conditions,\nrules or procedures with terms or conditions which are inconsistent with the\nprovisions of the Plan; and\n\n               (ix)   to take such other action, not inconsistent with the terms\nof the Plan, as the Administrator deems appropriate.\n\n                                      -8-\n\n \n     5.   Eligibility. Awards other than Incentive Stock Options may be granted\n          -----------\nto Employees, Directors and Consultants. Incentive Stock Options may be granted\nonly to Employees of the Company, a Parent or a Subsidiary. An Employee,\nDirector or Consultant who has been granted an Award may, if otherwise eligible,\nbe granted additional Awards. Awards may be granted to such Employees, Directors\nor Consultants who are residing in foreign jurisdictions as the Administrator\nmay determine from time to time.\n\n     6.   Terms and Conditions of Awards.\n          ------------------------------\n\n          (a)  Type of Awards. The Administrator is authorized under the Plan to\n               --------------\naward any type of arrangement to an Employee, Director or Consultant that is not\ninconsistent with the provisions of the Plan and that by its terms involves or\nmight involve the issuance of (i) Shares, (ii) an Option, a SAR or similar right\nwith a fixed or variable price related to the Fair Market Value of the Shares\nand with an exercise or conversion privilege related to the passage of time, the\noccurrence of one or more events, or the satisfaction of performance criteria or\nother conditions, or (iii) any other security with the value derived from the\nvalue of the Shares. Such awards include, without limitation, Options, SARs,\nsales or bonuses of Restricted Stock, Dividend Equivalent Rights, Performance\nUnits or Performance Shares, and an Award may consist of one such security or\nbenefit, or two (2) or more of them in any combination or alternative.\n\n          (b)  Designation of Award. Each Award shall be designated in the Award\n               --------------------\nAgreement. In the case of an Option, the Option shall be designated as either an\nIncentive Stock Option or a Non-Qualified Stock Option. However, notwithstanding\nsuch designation, to the extent that the aggregate Fair Market Value of Shares\nsubject to Options designated as Incentive Stock Options which become\nexercisable for the first time by a Grantee during any calendar year (under all\nplans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess\nOptions, to the extent of the Shares covered thereby in excess of the foregoing\nlimitation, shall be treated as Non-Qualified Stock Options. For this purpose,\nIncentive Stock Options shall be taken into account in the order in which they\nwere granted, and the Fair Market Value of the Shares shall be determined as of\nthe date the Option with respect to such Shares is granted.\n\n          (c)  Conditions of Award. Subject to the terms of the Plan, the\n               -------------------\nAdministrator shall determine the provisions, terms, and conditions of each\nAward including, but not limited to, the Award vesting schedule, repurchase\nprovisions, rights of first refusal, forfeiture provisions, form of payment\n(cash, Shares, or other consideration) upon settlement of the Award, payment\ncontingencies, and satisfaction of any performance criteria. The performance\ncriteria established by the Administrator may be based on any one of, or\ncombination of, increase in share price, earnings per share, total stockholder\nreturn, return on equity, return on assets, return on investment, net operating\nincome, cash flow, revenue, economic value added, personal management\nobjectives, or other measure of performance selected by the Administrator.\nPartial achievement of the specified criteria may result in a payment or vesting\ncorresponding to the degree of achievement as specified in the Award Agreement.\n\n                                      -9-\n\n \n          (d)  Acquisitions and Other Transactions. The Administrator may issue\n               -----------------------------------\nAwards under the Plan in settlement, assumption or substitution for, outstanding\nawards or obligations to grant future awards in connection with the Company or a\nRelated Entity acquiring another entity, an interest in another entity or an\nadditional interest in a Related Entity whether by merger, stock purchase, asset\npurchase or other form of transaction.\n\n          (e)  Deferral of Award Payment. The Administrator may establish one or\n               -------------------------\nmore programs under the Plan to permit selected Grantees the opportunity to\nelect to defer receipt of consideration upon exercise of an Award, satisfaction\nof performance criteria, or other event that absent the election would entitle\nthe Grantee to payment or receipt of Shares or other consideration under an\nAward. The Administrator may establish the election procedures, the timing of\nsuch elections, the mechanisms for payments of, and accrual of interest or other\nearnings, if any, on amounts, Shares or other consideration so deferred, and\nsuch other terms, conditions, rules and procedures that the Administrator deems\nadvisable for the administration of any such deferral program.\n\n          (f)  Award Exchange Programs. The Administrator may establish one or\n               -----------------------\nmore programs under the Plan to permit selected Grantees to exchange an Award\nunder the Plan for one or more other types of Awards under the Plan on such\nterms and conditions as determined by the Administrator from time to time.\n\n          (g)  Separate Programs. The Administrator may establish one or more\n               -----------------\nseparate programs under the Plan for the purpose of issuing particular forms of\nAwards to one or more classes of Grantees on such terms and conditions as\ndetermined by the Administrator from time to time.\n\n          (h)  Individual Option and SAR Limit. The maximum number of Shares\n               -------------------------------\nwith respect to which Options and SARs may be granted to any Grantee in any\nfiscal year of the Company shall be five hundred thousand (500,000) Shares. The\nforegoing limitation shall be adjusted proportionately in connection with any\nchange in the Company's capitalization pursuant to Section 10, below. To the\nextent required by Section 162(m) of the Code or the regulations thereunder, in\napplying the foregoing limitation with respect to a Grantee, if any Option or\nSAR is canceled, the canceled Option or SAR shall continue to count against the\nmaximum number of Shares with respect to which Options and SARs may be granted\nto the Grantee. For this purpose, the repricing of an Option (or in the case of\na SAR, the base amount on which the stock appreciation is calculated is reduced\nto reflect a reduction in the Fair Market Value of the Common Stock) shall be\ntreated as the cancellation of the existing Option or SAR and the grant of a new\nOption or SAR.\n\n          (i)  Early Exercise. The Award Agreement may, but need not, include a\n               --------------\nprovision whereby the Grantee may elect at any time while an Employee, Director\nor Consultant to exercise any part or all of the Award prior to full vesting of\nthe Award. Any unvested Shares received pursuant to such exercise may be subject\nto a repurchase right in favor of the Company or a Related Entity or to any\nother restriction the Administrator determines to be appropriate.\n\n                                      -10-\n\n \n     (j) Term of Award.  The term of each Award shall be the term stated in the\n         -------------                                                         \nAward Agreement, provided, however, that the term of an Incentive Stock Option\nshall be no more than ten (10) years from the date of grant thereof.   However,\nin the case of an Incentive Stock Option granted to a Grantee who, at the time\nthe Option is granted, owns stock representing more than ten percent (10%) of\nthe voting power of all classes of stock of the Company or any Parent or\nSubsidiary, the term of the Incentive Stock Option shall be five (5) years from\nthe date of grant thereof or such shorter term as may be provided in the Award\nAgreement.\n\n     (k) Transferability of Awards.  Incentive Stock Options may not be sold,\n         -------------------------                                           \npledged, assigned, hypothecated, transferred, or disposed of in any manner other\nthan by will or by the laws of descent or distribution and may be exercised,\nduring the lifetime of the Grantee, only by the Grantee; provided, however, that\nthe Grantee may designate a beneficiary of the Grantee's Incentive Stock Option\nin the event of the Grantee's death on a beneficiary designation form provided\nby the Administrator.  Other Awards may be transferred by gift or through a\ndomestic relations order to members of the Grantee's Immediate Family to the\nextent provided in the Award Agreement or in the manner and to the extent\ndetermined by the Administrator.\n\n     (l) Time of Granting Awards.  The date of grant of an Award shall for all\n         -----------------------                                              \npurposes be the date on which the Administrator makes the determination to grant\nsuch Award, or such other date as is determined by the Administrator.  Notice of\nthe grant determination shall be given to each Employee, Director or Consultant\nto whom an Award is so granted within a reasonable time after the date of such\ngrant.\n\n  7. Award Exercise or Purchase Price, Consideration and Taxes.\n     --------------------------------------------------------- \n\n     (a) Exercise or Purchase Price.  The exercise or purchase price, if any,\n         --------------------------                                          \nfor an Award shall be as follows:\n\n         (i)  In the case of an Incentive Stock Option:\n\n              (A) granted to an Employee who, at the time of the grant of such\nIncentive Stock Option owns stock representing more than ten percent (10%) of\nthe voting power of all classes of stock of the Company or any Parent or\nSubsidiary, the per Share exercise price shall be not less than one hundred ten\npercent (110%) of the Fair Market Value per Share on the date of grant; or\n\n              (B) granted to any Employee other than an Employee described in\nthe preceding paragraph, the per Share exercise price shall be not less than one\nhundred percent (100%) of the Fair Market Value per Share on the date of grant.\n\n         (ii) In the case of a Non-Qualified Stock Option, the per Share\nexercise price shall be not less than of the Fair Market Value per Share on the\ndate of grant.\n\n                                      -11-\n\n \n        (iii)  In the case of Awards intended to qualify as Performance-Based\nCompensation, the exercise or purchase price, if any, shall be not less than one\nhundred percent (100%) of the Fair Market Value per Share on the date of grant.\n\n        (iv)   In the case of other Awards, such price as is determined by the\nAdministrator.\n\n        (v)    Notwithstanding the foregoing provisions of this Section 7(a), in\nthe case of an Award issued pursuant to Section 6(d), above, the exercise or\npurchase price for the Award shall be determined in accordance with the\nprinciples of Section 424(a) of the Code.\n\n    (b) Consideration.  Subject to Applicable Laws, the consideration to be\n        -------------                                                      \npaid for the Shares to be issued upon exercise or purchase of an Award including\nthe method of payment, shall be determined by the Administrator (and, in the\ncase of an Incentive Stock Option, shall be determined at the time of grant).\nIn  addition to any other types of consideration the Administrator may\ndetermine, the Administrator is authorized to accept as consideration for Shares\nissued under the Plan the following, provided that the portion of the\nconsideration equal to the par value of the Shares must be paid in cash or other\nlegal consideration permitted by the Delaware General Corporation Law:\n\n        (i)    cash;\n\n        (ii)   check;\n\n        (iii)  delivery of Grantee's promissory note with such recourse,\ninterest, security, and redemption provisions as the Administrator determines as\nappropriate;\n\n        (iv)   if the exercise or purchase occurs on or after the Registration\nDate, surrender of Shares or delivery of a properly executed form of attestation\nof ownership of Shares as the Administrator may require (including withholding\nof Shares otherwise deliverable upon exercise of the Award) which have a Fair\nMarket Value on the date of surrender or attestation equal to the aggregate\nexercise price of the Shares as to which said Award shall be exercised (but only\nto the extent that such exercise of the Award would not result in an accounting\ncompensation charge with respect to the Shares used to pay the exercise price\nunless otherwise determined by the Administrator);\n\n        (v)    with respect to Options, if the exercise occurs on or after the\nRegistration Date, payment through a broker-dealer sale and remittance procedure\npursuant to which the Grantee (A) shall provide written instructions to a\nCompany designated brokerage firm to effect the immediate sale of some or all of\nthe purchased Shares and remit to the Company, out of the sale proceeds\navailable on the settlement date, sufficient funds to cover the aggregate\nexercise price payable for the purchased Shares and (B) shall provide written\ndirectives to the Company to deliver the certificates for the purchased Shares\ndirectly to such brokerage firm in order to complete the sale transaction; or\n\n                                      -12-\n\n \n         (vi)  any combination of the foregoing methods of payment.\n\n     (c) Taxes.  No Shares shall be delivered under the Plan to any Grantee or\n         -----                                                                \nother person until such Grantee or other person has made arrangements acceptable\nto the Administrator for the satisfaction of any foreign, federal, state, or\nlocal income and employment tax withholding obligations, including, without\nlimitation, obligations incident to the receipt of Shares or the disqualifying\ndisposition of Shares received on exercise of an Incentive Stock Option.  Upon\nexercise of an Award, the Company shall withhold or collect from Grantee an\namount sufficient to satisfy such tax obligations.\n\n  8. Exercise of Award.\n     ----------------- \n\n     (a) Procedure for Exercise; Rights as a Stockholder.\n         ----------------------------------------------- \n\n         (i)   Any Award granted hereunder shall be exercisable at such times\nand under such conditions as determined by the Administrator under the terms of\nthe Plan and specified in the Award Agreement.\n\n         (ii)  An Award shall be deemed to be exercised when written notice of\nsuch exercise has been given to the Company in accordance with the terms of the\nAward by the person entitled to exercise the Award and full payment for the\nShares with respect to which the Award is exercised, including, to the extent\nselected, use of the broker-dealer sale and remittance procedure to pay the\npurchase price as provided in Section 7(b)(v). Until the issuance (as evidenced\nby the appropriate entry on the books of the Company or of a duly authorized\ntransfer agent of the Company) of the stock certificate evidencing such Shares,\nno right to vote or receive dividends or any other rights as a stockholder shall\nexist with respect to Shares subject to an Award, notwithstanding the exercise\nof an Option or other Award. The Company shall issue (or cause to be issued)\nsuch stock certificate promptly upon exercise of the Award. No adjustment will\nbe made for a dividend or other right for which the record date is prior to the\ndate the stock certificate is issued, except as provided in the Award Agreement\nor Section 10, below.\n\n     (b) Exercise of Award Following Termination of Continuous Service.\n         ------------------------------------------------------------- \n\n         (i)   An Award may not be exercised after the termination date of such\nAward set forth in the Award Agreement and may be exercised following the\ntermination of a Grantee's Continuous Service only to the extent provided in the\nAward Agreement.\n\n         (ii)  Where the Award Agreement permits a Grantee to exercise an Award\nfollowing the termination of the Grantee's Continuous Service for a specified\nperiod, the Award shall terminate to the extent not exercised on the last day of\nthe specified period or the last day of the original term of the Award,\nwhichever occurs first.\n\n         (iii) Any Award designated as an Incentive Stock Option to the extent\nnot exercised within the time permitted by law for the exercise of Incentive\nStock Options following the termination of a Grantee's Continuous Service shall\nconvert automatically to a\n\n                                      -13-\n\n \nNon-Qualified Stock Option and thereafter shall be exercisable as such to the\nextent exercisable by its terms for the period specified in the Award Agreement.\n\n   9.     Conditions Upon Issuance of Shares.\n          ---------------------------------- \n\n          (a) Shares shall not be issued pursuant to the exercise of an Award\nunless the exercise of such Award and the issuance and delivery of such Shares\npursuant thereto shall comply with all Applicable Laws, and shall be further\nsubject to the approval of counsel for the Company with respect to such\ncompliance.\n\n          (b) As a condition to the exercise of an Award, the Company may\nrequire the person exercising such Award to represent and warrant at the time of\nany such exercise that the Shares are being purchased only for investment and\nwithout any present intention to sell or distribute such Shares if, in the\nopinion of counsel for the Company, such a representation is required by any\nApplicable Laws.\n\n  10.     Adjustments Upon Changes in Capitalization.  Subject to any required\n          ------------------------------------------                          \naction by the stockholders of the Company, the number of Shares covered by each\noutstanding Award, and the number of Shares which have been authorized for\nissuance under the Plan but as to which no Awards have yet been granted or which\nhave been returned to the Plan, the exercise or purchase price of each such\noutstanding Award, the maximum number of Shares with respect to which Options\nand SARs may be granted to any Grantee in any fiscal year of the Company, as\nwell as any other terms that the Administrator determines require adjustment\nshall be proportionately adjusted for (i) any increase or decrease in the number\nof issued Shares resulting from a stock split, reverse stock split, stock\ndividend, combination or reclassification of the Shares, or similar event\naffecting the Shares, (ii) any other increase or decrease in the number of\nissued Shares effected without receipt of consideration by the Company, or (iii)\nas the Administrator may determine in its discretion, any other transaction with\nrespect to Common Stock to which Section 424(a) of the Code applies or any\nsimilar transaction; provided, however that conversion of any convertible\nsecurities of the Company shall not be deemed to have been \"effected without\nreceipt of consideration.\"  Such adjustment shall be made by the Administrator\nand its determination shall be final, binding and conclusive.  Except as the\nAdministrator determines, no issuance by the Company of shares of stock of any\nclass, or securities convertible into shares of stock of any class, shall\naffect, and no adjustment by reason hereof shall be made with respect to, the\nnumber or price of Shares subject to an Award.\n\n  11.     Corporate Transactions\/Changes in Control\/Related Entity Dispositions.\nExcept as may be provided in an Award Agreement:\n\n          (a) In the event of any Corporate Transaction, each Award which is at\nthe time outstanding under the Plan automatically shall become fully vested and\nexercisable and be released from any restrictions on transfer (other than\ntransfer restrictions applicable to Options) and repurchase or forfeiture\nrights, immediately prior to the specified effective date of such Corporate\nTransaction, for all of the Shares at the time represented by such Award.\nEffective upon the consummation of the Corporate Transaction, all outstanding\nAwards under the Plan\n\n                                      -14-\n\n \nshall terminate. However, all such Awards shall not terminate if the Awards are,\nin connection with the Corporate Transaction, assumed by the successor\ncorporation or Parent thereof. In addition, an outstanding Award under the Plan\nshall not so fully vest and be exercisable and released from such limitations if\nand to the extent: (i) such Award is, in connection with the Corporate\nTransaction, either assumed by the successor corporation or Parent thereof or\nreplaced with a comparable Award with respect to shares of the capital stock of\nthe successor corporation or Parent thereof or (ii) such Award is to be replaced\nwith a cash incentive program of the successor corporation which preserves the\ncompensation element of such Award existing at the time of the Corporate\nTransaction and provides for subsequent payout in accordance with the same\nvesting schedule applicable to such Award; provided, however, that such Award\n(if assumed), the replacement Award (if replaced), or the cash incentive program\nautomatically shall become fully vested, exercisable and payable and be released\nfrom any restrictions on transfer (other than transfer restrictions applicable\nto Options) and repurchase or forfeiture rights immediately upon termination of\nthe Grantee's Continuous Service (substituting the successor employer\ncorporation for \"Company or Related Entity\" for the definition of \"Continuous\nService\") if such Continuous Service is terminated by the successor company\nwithout Cause or voluntarily by the Grantee with Good Reason within twelve (12)\nmonths of the Corporate Transaction. The determination of Award comparability\nabove shall be made by the Administrator.\n\n          (b) Following a Change in Control (other than a Change in Control\nwhich also is a Corporate Transaction) and upon the termination of the\nContinuous Service of a Grantee if such Continuous Service is terminated by the\nCompany or Related Entity without Cause or voluntarily by the Grantee with Good\nReason within twelve (12) months of a Change in Control, each Award of such\nGrantee which is at the time outstanding under the Plan automatically shall\nbecome fully vested and exercisable and be released from any restrictions on\ntransfer (other than transfer restrictions applicable to Options) and repurchase\nor forfeiture rights, immediately upon the termination of such Continuous\nService.\n\n          (c) Effective upon the consummation of a Related Entity Disposition,\nfor purposes of the Plan and all Awards, the Continuous Service of each Grantee\nwho is at the time engaged primarily in service to the Related Entity involved\nin such Related Entity Disposition shall be deemed to terminate and each Award\nof such Grantee which is at the time outstanding under the Plan automatically\nshall become fully vested and exercisable and be released from any restrictions\non transfer (other than transfer restrictions applicable to Options) and\nrepurchase or forfeiture rights for all of the Shares at the time represented by\nsuch Award and be exercisable in accordance with the terms of the Award\nAgreement evidencing such Award.  However, such Continuous Service shall be not\nbe deemed to terminate if such Award is, in connection with the Related Entity\nDisposition, assumed by the successor entity or its Parent.  In addition, such\nContinuous Service shall not be deemed to terminate and an outstanding Award\nunder the Plan shall not so fully vest and be exercisable and released from such\nlimitations if and to the extent:  (i) such Award is, in connection with the\nRelated Entity Disposition, either to be assumed by the successor entity or its\nparent or to be replaced with a comparable Award with respect to interests in\nthe successor entity or its parent or (ii) such Award is to be replaced with a\ncash incentive program of the successor entity which preserves the compensation\nelement of such Award\n\n                                      -15-\n\n \nexisting at the time of the Related Entity Disposition and provides for\nsubsequent payout in accordance with the same vesting schedule applicable to\nsuch Award; provided, however, that such Award (if assumed), the replacement\nAward (if replaced), or the cash incentive program automatically shall become\nfully vested, exercisable and payable and be released from any restrictions on\ntransfer (other than transfer restrictions applicable to Options) and repurchase\nor forfeiture rights immediately upon termination of the Grantee's Continuous\nService (substituting the successor employer entity for \"Company or Related\nEntity\" for the definition of \"Continuous Service\") if such Continuous Service\nis terminated by the successor entity without Cause or voluntarily by the\nGrantee with Good Reason within twelve (12) months of the Related Entity\nDisposition. The determination of Award comparability above shall be made by the\nAdministrator.\n\n          (d) Notwithstanding the foregoing, in the event of a  Corporate\nTransaction, Change in Control or Related Entity Disposition which is also\nintended to constitute a \"pooling of interests\" under generally accepted\naccounting principles, the Administrator shall take such actions, if any, which\nare specifically recommended by an independent accounting firm retained by the\nCompany to the extent reasonably necessary in order to insure that the Corporate\nTransaction, Change in Control or Related Entity Disposition, as the case may\nbe, will qualify as a pooling of interests, including without limitation, (i)\ndeferring the exercisability or payment of an Award, (ii) providing that payment\nin respect of an Award will be made in the form of cash, Shares or securities of\na successor or acquiror of the Company, or a combination of the foregoing and\n(iii) providing for the extension of the term of any Award to the extent\nnecessary to accommodate the foregoing, but not beyond the maximum term\npermitted for any Award.\n\n          (e) The portion of any Incentive Stock Option accelerated under this\nSection 11 in connection with a Corporate Transaction, Change in Control or\nRelated Entity Disposition shall remain exercisable as an Incentive Stock Option\nunder the Code only to the extent the $100,000 dollar limitation of Section\n422(d) of the Code is not exceeded.  To the extent such dollar limitation is\nexceeded, the accelerated excess portion of such Option shall be exercisable as\na Non-Qualified Stock Option.\n\n  12.     Effective Date and Term of Plan.  The Plan, prior to this amendment\n          -------------------------------                                    \nand restatement (the \"Original Plan\") became effective upon its adoption by the\nBoard on November 28, 2000. The Original Plan was approved by stockholders on\nNovember 30, 2000. The amendments to the Original Plan in the form of this\namendment and restatement shall become effective upon their adoption by the\nBoard; provided, however, that the amendements to Sections 6(j), 7(a)(ii)(A),\n8(a)(i), 12 and 19 of the Original Plan shall become effective upon the later of\ntheir adoption by the Board or the Registration Date. The Plan shall continue in\neffect for a term of ten (10) years from the effective date of the Original Plan\nunless sooner terminated. Subject to Section 17, below, and Applicable Laws,\nAwards may be granted under the Plan upon its becoming effective.\n\n  13.     Amendment, Suspension or Termination of the Plan.\n          ------------------------------------------------ \n\n                                      -16-\n\n \n        (a) The Board may at any time amend, suspend or terminate the Plan. To\nthe extent necessary to comply with Applicable Laws, the Company shall obtain\nstockholder approval of any Plan amendment in such a manner and to such a degree\nas required.\n\n        (b) No Award may be granted during any suspension of the Plan or after\ntermination of the Plan.\n\n        (c) Any amendment, suspension or termination of the Plan (including\ntermination of the Plan under Section 12, above) shall not affect Awards already\ngranted, and such Awards shall remain in full force and effect as if the Plan\nhad not been amended, suspended or terminated, unless mutually agreed otherwise\nbetween the Grantee and the Administrator, which agreement must be in writing\nand signed by the Grantee and the Company.\n\n  14.   Reservation of Shares.\n        --------------------- \n\n        (a) The Company, during the term of the Plan, will at all times reserve\nand keep available such number of Shares as shall be sufficient to satisfy the\nrequirements of the Plan.\n\n        (b) The inability of the Company to obtain authority from any regulatory\nbody having jurisdiction, which authority is deemed by the Company's counsel to\nbe necessary to the lawful issuance and sale of any Shares hereunder, shall\nrelieve the Company of any liability in respect of the failure to issue or sell\nsuch Shares as to which such requisite authority shall not have been obtained.\n\n  15.   No Effect on Terms of Employment\/Consulting Relationship.  The Plan\n        --------------------------------------------------------           \nshall not confer upon any Grantee any right with respect to the Grantee's\nContinuous Service, nor shall it interfere in any way with his or her right or\nthe Company's right to terminate the Grantee's Continuous Service at any time,\nwith or without cause.\n\n  16.   No Effect on Retirement and Other Benefit Plans. Except as specifically\n        -----------------------------------------------\nprovided in a retirement or other benefit plan of the Company or a Related\nEntity, Awards shall not be deemed compensation for purposes of computing\nbenefits or contributions under any retirement plan of the Company or a Related\nEntity, and shall not affect any benefits under any other benefit plan of any\nkind or any benefit plan subsequently instituted under which the availability or\namount of benefits is related to level of compensation. The Plan is not a\n\"Retirement Plan\" or \"Welfare Plan\" under the Employee Retirement Income\nSecurity Act of 1974, as amended.\n\n  17.   Stockholder Approval.  The grant of Incentive Stock Options under the\n        --------------------                                                 \nOriginal Plan was approved by stockholders on November 30, 2000.  The grant of\nIncentive Stock Options under the Plan with respect to the increased number of\nShares shall be subject to approval by the stockholders of the Company within\ntwelve (12) months before or after the date the Plan is adopted excluding\nIncentive Stock Options issued in substitution for outstanding Incentive Stock\nOptions pursuant to Section 424(a) of the Code. Such stockholder approval shall\nbe obtained in the degree and manner required under Applicable Laws. The\nAdministrator may grant Incentive\n\n                                      -17-\n\n \nStock Options under the Plan with respect to such increased number of Shares\nprior to approval by the stockholders, but until such approval is obtained, no\nsuch Incentive Stock Option shall be exercisable. In the event that such\nstockholder approval is not obtained within the twelve (12) month period\nprovided above, all Incentive Stock Options previously granted under the Plan\nwith respect to the increased number of Shares shall be exercisable as Non-\nQualified Stock Options.\n \n\n                                      -18-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6597],"corporate_contracts_industries":[9451],"corporate_contracts_types":[9539,9546],"class_list":["post-38403","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-agraquest-inc","corporate_contracts_industries-manufacturing__chemicals","corporate_contracts_types-compensation","corporate_contracts_types-compensation__incentive"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38403","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38403"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38403"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38403"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38403"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}