Cto Employment Agreement

Exhibit 10.28

EMPLOYMENT AGREEMENT

THIS AGREEMENT, effective as of April , 2000, is made by and between DELTAGEN, INC., a Delaware corporation (hereinafter the "Company"), and BRIAN E. CROWLEY (hereinafter "Executive").

RECITALS

WHEREAS, the Company and Executive wish to set forth in this Agreement the terms and conditions under which Executive will continue to be employed by the Company; and

WHEREAS, the Company wishes to be assured that Executive will be available to the Company for an additional three (3) years after April ___, 2000.

NOW, THEREFORE, the Company and Executive, in consideration of the mutual promises set forth herein, agree as follows:

ARTICLE I.
TERM OF AGREEMENT

A. Commencement Date. The terms of this Agreement shall govern Executive's employment with the Company from April ____, 2000 ("Commencement Date") and this Agreement shall expire after a period of three (3) years from the Commencement Date, unless terminated earlier pursuant to Article 6.

B. Renewal. The term of this Agreement shall be automatically renewed for successive, additional one (1) year term unless either party delivers written notice to the other at least ninety (90) days prior to the expiration date of this Agreement of an intention to terminate this Agreement or to renew it for a term of less than (1) year.

ARTICLE II.
EMPLOYMENT DUTIES

A. Title/Responsibilities. Executive hereby accepts employment with the Company pursuant to the terms and conditions hereof. Executive agrees to serve the Company in the position of Director of Finance. Executive shall have the powers and duties commensurate with such position, including but not limited to, hiring personnel necessary (in the judgment of the Board of Directors) to carry out the responsibilities for such position.

B. Full Time Attention. Executive shall devote his best efforts and his full business time and attention to the performance of the services customarily incident to such office and to such other services as the Board may reasonably request, provided that Executive may also serve on the Boards of Directors of a limited number of other companies with the prior written consent of the Board.

C. Other Activities. Except upon the prior written consent of the Board of Directors, Executive shall not during the period of employment engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage) that is or may be competitive with, or that might place him in a competing position to that of the Company or any other corporation or entity that directly or indirectly controls, is controlled by, or is under common control with the Company (an "Affiliated Company"), provided that Executive may own less than two percent of the outstanding securities of any such publicly traded competing corporation.

ARTICLE III.
COMPENSATION

A. Base Salary. Executive shall receive a Base Salary at an annual rate of one hundred twenty-five thousand dollars ($125,000), payable in accordance with the Company's customary payroll practices. The Company's Board of Directors shall provide Executive with annual performance reviews, and, thereafter, Executive shall be entitled to such Base Salary as the Board of Directors may from time to time establish in its sole discretion.

B. Annual Bonus. Executive shall be eligible for an annual bonus as determined by the Board of Directors in its sole discretion.

C. Accelerated Vesting of Options. If the Company enters into a transaction which is a Change in Control Transaction, then fifty percent (50%) of all options held by Executive as of the date of completion of the Change in Control Transaction shall become fully vested and exercisable (provided that such provision shall not apply if, as of such date, more than 50% of the options held by Executive are already fully vested).

D. Withholdings. All compensation and benefits to Executive hereunder shall be subject to all federal, state, local and other withholdings and similar taxes and payments required by applicable law.

ARTICLE IV.
EXPENSE ALLOWANCES AND FRINGE BENEFITS

A. Vacation. Executive shall be entitled to [three (3)] weeks of annual paid vacation during the term of this Agreement.

B. Benefits. During the term of this Agreement, the Company shall also provide Executive with the usual health insurance benefits it generally provides to its other senior management employees, other than life insurance (which shall be paid directly by Executive). As Executive becomes eligible in accordance with criteria to be adopted by the Company, the Company shall provide Executive with the right to participate in and to receive benefits from accident, disability, medical, pension, bonus, stock, profit-sharing and savings plans and similar benefits made available generally to employees of the Company as such plans and benefits may be adopted by the Company, provided that Executive shall during the term of this Agreement be entitled to receive at a minimum standard medical and dental benefits similar to those typically afforded to Director of Finance in similar sized biotechnology companies, excluding life insurance. The amount and extent of benefits to which Executive is entitled shall be governed by the specific benefit plan as it may be amended from time to time.

C. Business Expense Reimbursement. During the term of this Agreement, Executive shall be entitled to receive proper reimbursement for all reasonable out-of-pocket expenses incurred by him (in accordance with the policies and procedures established by the Company for its senior executive officers) in performing services hereunder, provided Executive properly accounts therefor.

ARTICLE V.
CONFIDENTIALITY

A. Proprietary Information. Executive represents and warrants that he has executed and delivered to the Company the Company's standard Proprietary Information and Inventions Agreement in form acceptable to the Company's counsel.

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B. Return of Property. All documents, records, apparatus, equipment and other physical property which is furnished to or obtained by Executive in the course of his employment with the Company shall be and remain the sole property of the Company. Executive agrees that, upon the termination of ...