exv10w28






Exhibit 10.28




EXCLUSIVE CONSULTANCY AGREEMENT 





	1.	 	THE PARTIES






	 	 	This Agreement is made effective January 1, 2006 by and between Ceres, Inc., a Delaware
corporation with principal offices at 1535 Rancho Conejo Blvd, Thousand Oaks, CA 91320,
hereinafter “Ceres,” and Robert B. Goldberg, Ph.D., an individual, 21907 Canon Dr., Topanga,
CA 90290, hereinafter “Consultant.”
	 
	 	 	THE PARTIES HERETO CONVENANT AND AGREE AS FOLLOWS:






	2.	 	CONSULTANCY SERVICES






	 	2.1	 	Consultant agrees to render consultancy services to Ceres in the following
field: plants, agriculture, genomics, agricultural biotechnology, agricultural
chemicals, plant-derived chemicals, pharmaceuticals or other compounds, production of
chemicals, pharmaceuticals or other compounds in plants, energy, seeds, food, feed,
food or feed processing, and nutrition (the “Field”). Such services are referred to
hereinafter as the “Consultancy Services.”
	 
	 	2.2	 	Consultancy Services will be rendered at Ceres’ election at Ceres’ premises in
Thousand Oaks or at any other location agreed to by the Parties. Consultancy Services
will be rendered on the dates or during the time periods as may be agreed to by the
Parties, provided that Consultant shall make himself available for Consultancy Services
at least one day per month, and that Consultancy Services shall not exceed thirty-seven
(37) days per year.
	 
	 	2.3	 	Within the framework of the Consultancy Services, Consultant will comply with
specific requests from the following Ceres officers: Richard Flavell, Richard Hamilton
or any person designated by either of the foregoing
	 
	 	2.4	 	During the term of this Agreement, Consultant will not render consultancy or
other services to any third party in the Field, nor enter into any agreement with or
perform any activity in the field for the benefit of any company or other for-profit
organization other than Ceres.






	3.	 	COMPENSATION






	 	3.1	 	As compensation for the Consultancy Services, Ceres hereby waives the repayment
of the loan in the amount of $15,500 extended by Ceres to Consultant on May 22, 2000
and the payment of any interest of such loan; the total amount of loan and interest
waived by Ceres, plus the estimated taxes to you, grossed up, is $30,392.14.
	 
	 	3.2	 	Ceres will reimburse out-of-pocket expenses reasonably incurred by Consultant
in the performance of the Consultancy Services up to a maximum of $40,000 per




Page 1 of 7









 






	 	 	 	year, provided that Consultant furnishes to Ceres supporting receipts or other
written substantiation of such expenses.






	4.	 	OWNERSHIP. INTELLECTUAL PROPERTY RIGHTS. EXPLOITATION.






	 	4.1	 	Ceres will exclusively own any material, information, data, technology,
processes, procedures, formulas, software, or other findings or inventions resulting
from the performance of the Consultancy Services (hereinafter “Results”). Ceres will
have the exclusive rights to protect any of the Results through patents or copyright,
trade secret or any other intellectual property protection, and any intellectual
property rights arising therefrom will belong exclusively to Ceres. In case Consultant
makes or contributes to any invention forming part of the Results, Consultant hereby
assigns its rights in any such invention to Ceres. Consultant shall render such
assistance as may be required for assigning any rights Consultant may have in such
invention to Ceres or Ceres’ designee and for protecting such invention and enforcing
any patent or other intellectual property rights on such invention, including, but not
limited to the signing of documents. Consultant or any inventor of Consultant will be
recognized in patent applications on an invention which is part of the Results in
accordance with the U.S. patent law.
	 
	 	4.2	 	Consultant will promptly disclose to Ceres any Results which may be eligible
for patent, copyright, trade secret or other intellectual property protection.
	 
	 	4.3	 	After the expiration or termination of this Agreement, Ceres shall compensate
Consultant at a reasonable rate for time actually spent by Consultant at Ceres’ request
on assistance pursuant to Article 4.1.
	 
	 	4.4	 	Ceres will have the exclusive right to use and commercialize any of the
Results.






	5.	 	CONFIDENTIALITY






	 	5.1	 	“Confidential Information” is any information which comes to Consultant’s
knowledge in connection with the Consultancy Services. Confidential Information may be
disclosed or provided in oral, written, electronic, graphic, photographic or any other
form, or may be observed by Consultant. By way of illustration, but not limitation,
Confidential Information includes Results (as defined in Article 4.1) business,
development and research strategy, risk, analysis, intellectual property and
intellectual property strategy, inventions, ideas, know-how, trade secrets, data,
techniques, formulas, methods, processes, software programs, marketing plans, market
data, data concerning competitors’ strategies compiled by Ceres, forecasts, financial
information, customers, customers lists, confidential information provided by third
parties to Ceres and any other information concerning Ceres or Ceres’ affiliates actual
or anticipated business.
	 
	 	5.2	 	Consultant agrees, unless Consultant has received the express written consent
of Ceres to the contrary, which consent shall be limited to the particular instance and
restricted to such of the Confidential Information as may be expressly designated




Page 2 of 7









 






	 	 	 	by Ceres, (i) to hold the Confidential Information in strict confidence and to take
all reasonable precautions to protect such Confidential Information (including,
without limitation, all precautions Consultant customarily employs with respect to
its confidential information), (ii) not to divulge any of the Confidential
Information or any information derived therefrom to any third person, (iii) not to
make any use whatsoever at any time of the Confidential Information except for the
purpose of the Consultancy Services, and (iv) not to reverse engineer or disassemble
any of the Confidential Information. The obligations set forth in this Article 5.2
shall expire five (5) years after the expiration or termination of this Agreement.






	 	5.3	 	Without granting any right of license, Ceres agrees that the obligations in
Section 5.2 shall not apply with respect to any information that Consultant proves (i)
is or through no improper action or inaction or breach by Consultant of any provision
of this Agreement or any other similar agreement to which Consultant is a party, has
been made generally available or known to the public, or (ii) was already in the
possession of Consultant prior to receipt from Ceres, or (iii) was rightfully disclosed
to Consultant by a third party (provided that Consultant is in compliance with any
restrictions imposed by the third party with respect to such disclosure).
	 
	 	5.4	 	In the event that Consultant is requested or required (by deposition,
interrogatories, requests for information or documents in legal proceedings, subpoena,
civil investigative demand or other similar process) to disclose any of the
Confidential Information, Consultant shall provide Ceres with prompt written notice of
any such request or requirement so that Ceres may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this Agreement. If,
in the absence of a protective order or other remedy or the receipt of a waiver by
Ceres, Consultant is nonetheless, in the written opinion of Consultant’s counsel,
legally compelled to disclose Confidential Information to any tribunal or else stand
liable for contempt or suffer other censure or penalty, Consultant may, without
liability hereunder, disclose to such tribunal only that portion of the Confidential
Information which such counsel advises the Consultant is legally required to be
disclosed; provided, that Consultant exercises its best efforts to preserve the
confidentiality of the Confidential Information, including, without limitation, by
cooperating with Ceres to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential Information by
such tribunal.
	 
	 	5.5	 	Immediately upon (i) the expiration or termination of this Agreement, or (ii) a
request by Ceres at any time, Consultant will turn over to Ceres all Confidential
Information and all copies thereof, and will destroy all extracts, studies, analyses,
notes or other writings that contain or refer to information contained in the
Confidential Information. Notwithstanding the return or destruction of the
Confidential Information, Consultant will continue to be bound by his obligations of
confidentiality and other obligations hereunder.




Page 3 of 7









 












	 	5.6	 	The Confidential Information including any material support containing
Confidential Information will remain the exclusive property of Ceres and Consultant
will not acquire any right, title, license or interest on or to the Confidential
Information, the supports containing Confidential Information, or any patent covering
Confidential Information.






	6.	 	REPRESENTATIONS AND WARRANTIES BY CONSULTANT.






	 	6.1	 	Consultant represents and warrants to Ceres that neither the execution and
delivery of this Agreement nor the carrying out of any of the Consultancy Services or
obligations of Consultant under this Agreement will in any respect result in any
violation of or be in conflict with any term or provision of any agreement, document or
instrument to which Consultant is a party or by which Consultant is bound. Consultant
agrees not to divulge to Ceres any information which would violate any such agreement,
document or instrument, nor to divulge to Ceres any trade secrets of prior employers or
contracting parties.






	7.	 	LIMITATION OF LIABILITY.






	 	7.1	 	Neither Party shall be liable for indirect, special, remote, incidental, or
consequential damages or loss of profit in connection with this Agreement or its
implementation.






	8.	 	STATUS OF CONSULTANT. TAXES.






	 	8.1	 	Consultant will perform the Consultancy Services as an independent consultant.
Consultant will not be deemed an employee of Ceres.
	 
	 	8.2	 	Consultant will be responsible for the payment of any taxes, social security
contributions or other levies which may be applicable to Consultant’s compensation
received pursuant to this Agreement.






	9.	 	GENERAL CONDITIONS.






	 	9.1	 	Notices.






	 	 	 	All notices and other communications provided for under this Agreement will be in
writing mailed by first-class, registered or certified mail, postage prepaid, or
delivered personally, by overnight delivery service or by facsimile followed by a
confirmation copy delivered by overnight delivery, and in each case will be
addressed to the Parties at the following addresses:





	 	 	 	 	 

	 

	 	For Ceres:
	 	Chief Executive Officer
	 

	 	 	 	Ceres, Inc.
	 

	 	 	 	1535 Rancho Conejo Blvd
	 

	 	 	 	Thousand Oaks, CA 91320






Page 4 of 7









 






	 	 	 	 	 

	 

	 	 	 	Telephone: (805) 376-6500
	 

	 	 	 	Facsimile: (805) 376-6549
	 
	 	 	 	 
	 

	 	For Consultant:
	 	Robert B. Goldberg, Ph.D.
	 

	 	 	 	21907 Canon Drive
	 

	 	 	 	Topanga, CA 90290
	 

	 	 	 	Telephone: (310) 455-4028
	 

	 	 	 	Facsimile: (310) 825-8201







	 	 	 	Either Party may by like notice specify or change an address to which
notices and communications will thereafter be sent. Notices sent by
facsimile will be effective upon confirmation of receipt, notices sent
by mail or overnight deliver will be effective on receipt and notices
given personally will be effective when delivered.






	 	9.2	 	Entire Agreement.






	 	 	 	This Agreement incorporates the entire agreement between Ceres and Consultant
relating to the Consultancy Services and supersedes all prior agreements and
understandings, whether written or oral, which respect to such subject matter.






	 	9.3	 	Amendments.
	 
	 	 	 	This Agreement, including its annexes, may only be amended by a written document
signed by duly authorized representatives of the Parties.






	 	9.4	 	Ambiguities.
	 
	 	 	 	In case of ambiguity between this Agreement and its annexes, the contents of the
agreement shall prevail.
	 
	 	9.5	 	Number of copies.
	 
	 	 	 	This Agreement including its annexes is being made in two (2) copies, one for each
Party.
	 
	 	9.6	 	Assignment. Subcontracts.
	 
	 	 	 	Ceres has concluded this Agreement with Consultant in view of Consultant’s specific
qualifications and Consultant shall not have the right to assign any of its rights
or obligations under this Agreement nor to sub-contract any part of the Consultancy
Services activities to any third party, except with the prior written approval of
Ceres. Ceres has the right to assign its rights and obligations under this
Agreement to an affiliate of Ceres.
	 
	 	9.7	 	Ceres’ Premises





Page 5 of 7









 











	 	 	 	Consultant will abide with any rules and regulations relating to safety, security
and protection of Confidential Information which Ceres may bring to the attention of
Consultant when he is visiting Ceres’ premises.
	 
	 	9.8	 	Equitable Remedies.
	 
	 	 	 	It is understood and agreed that money damages would not be a sufficient remedy for
any breach of this Agreement by Consultant and that Ceres is entitled to equitable
relief, including injunction and specific performance, as a remedy for any such
breach. Such remedies shall not be deemed to be the exclusive remedies for a breach
by Consultant of this Agreement but shall be in additions to all other remedies
available at law or equity to Ceres.
	 
	 	9.9	 	Governing Law. Jurisdiction
	 
	 	 	 	This Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California without regard to the principles of
conflicts of law thereof. The Parties agree that any dispute regarding the
interpretation, performance or validity of, or otherwise arising out of, this
Agreement shall be subject to the exclusive jurisdiction of the California State
Courts having jurisdiction in San Francisco County, California, or, in the event of
federal jurisdiction, the United States District Court for the Northern District of
California, and each Party agrees to submit to the personal and exclusive
jurisdiction and venue of such courts and not to seek the transfer of any action or
proceeding out of such courts.






	10.	 	DURATION






	 	10.1	 	This Agreement will enter into force on the date first written hereinabove and
will remain in full force and effect until December 31, 2010.
	 
	 	10.2	 	Either Party will have the right to terminate this Agreement unilaterally by
registered letter addressed to the other Party in case the other Party has committed a
breach of any of its obligations under this Agreement and has failed to remedy such
breach within thirty (30) days from receipt of a registered letter specifying the
breach.
	 
	 	10.3	 	The provisions of Articles 4, 5, 7.1, 9.8 and 9.9 will survive the expiration
or termination of this Agreement.




Page 6 of 7









 












	 	 	Made in two (2) copies.





	 	 	 

	Consultant

	 	Ceres, Inc.
	 
	 	 
	/s/ Robert B. Goldberg
 
 Robert
B. Goldberg, Ph.D.

	 	/s/ Richard Hamilton
 
 Richard
Hamilton
	 

	 	Chief Executive Officer






Page 7 of 7









 






AMENDMENT I



to the Exclusive Consultancy Agreement effective as of January 1, 2006 between Ceres, Inc. and
Robert B. Goldberg, Ph.D. (the “Agreement”).





	 	1.	 	The Parties agree to add an additional clause to Article 3.1. at the end, as follows:






	 	 	 	As additional compensation for the Consultancy Services, Consultant
will be granted annually, as long as this Agreement including its
clause 2.4. is in force, options to purchase 15,000 shares of common
stock of Ceres up to a maximum of 60,000 shares in total, subject to
approval by the Board of Directors, on the terms set forth in the
Notices of Grant and related option plan documents. Four (4) year
vesting schedules will apply.






	 	2.	 	For the remainder, the Agreement remains unchanged and this Amendment I shall form an
integral part thereof.




Made in two (2) copies.







	 	 	 	 	 	 	 

	CONSULTANT	 	CERES, INC.
	 
	 	 	 	 	 	 
	By: 

Name:

	 	/s/
Bob Goldberg
 
 Robert
B. Goldberg, Ph.D.
	 	By:

Name:
	 	/s/ Richard Hamilton
 
 Richard
Hamilton
	 

	 	 	 	Title:
	 	Chief Executive Officer





Date: November 17, 2006






Page 1 of 1









 








AMENDMENT II



to the Exclusive Consultancy Agreement effective as of January 1, 2006 between Ceres, Inc. and
Robert B. Goldberg, Ph.D., as amended (the “Agreement”).





	 	1.	 	The Parties agree to amend Article 10.1 of the Agreement so as to read as follows:






	 	 	 	“This Agreement will enter into force on the date first written
hereinabove and will remain in full force and effect until January
1, 2013.”






	 	2.	 	The Parties agree that this Amendment II is effective as of December 31, 2010.
	 
	 	3.	 	For the remainder, the Agreement remains unchanged and this Amendment II shall form an
integral part thereof.




Made in two (2) copies.







	 	 	 	 	 	 	 

	CONSULTANT	 	CERES, INC.
	 
	 	 	 	 	 	 
	By: 

Name:

	 	/s/
RB Goldberg
 
 Robert
B. Goldberg, Ph.D.
	 	By:

Name:
	 	/s/ Richard Hamilton
 
 Richard
Hamilton
	 

	 	 	 	Title:
	 	President & Chief Executive Officer






 











 





AMENDMENT III



to the Exclusive Consultancy Agreement effective as of January 1, 2006 between Ceres, Inc. and
Robert B. Goldberg, Ph.D., as amended (the “Agreement”).





	 	1.	 	The Parties agree to amend the second clause of Article 3.1 so as to read as follows:






As additional compensation for the Consultancy Services, Consultant
will be granted options to purchase 15,000 shares of common stock of
Ceres, subject to approval by the Board of Directors, on the terms
set forth in the Notice of Grant and related option plan documents.
Four (4) year vesting schedule will apply.




	 	2.	 	For the remainder, the Agreement remains unchanged and this Amendment III shall form an
integral part thereof.




Made in two (2) copies.




	 	 	 	 	 	 	 	 	 

	CONSULTANT	 	 	 	CERES, INC.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Robert Goldberg
	 	 	 	By:
	 	/s/ Richard Hamilton
	 

	 	 
	 	 	 	 	 	 
	Name: Robert B. Goldberg, Ph.D.	 	 	 	Name: Richard Hamilton
	 	 	 	 	 	 	Title: Chief Executive Officer






Date: July 22, 2011





Page 1 of 1