Exhibit 99.3
INVITROGEN CORPORATION
RESTRICTED STOCK UNITS AGREEMENT
(Executive Agreement with Deferral of Settlement Date)
Invitrogen Corporation has granted to the individual (the“Participant”) named in theNotice of Grant of Restricted Stock Units (the“Notice”) to which this Restricted Stock Units Agreement (the“Agreement”) is attached an award (the“Award”) of Restricted Stock Units upon the terms and conditions set forth in the Notice and this Agreement. The Award has been granted pursuant to and shall in all respects be subject to the terms and conditions of the Invitrogen Corporation 2004 Equity Incentive Plan (the“Plan”), as amended to the Date of Grant. By signing the Notice, the Participant: (a) represents that the Participant has read and is familiar with the terms and conditions of the Notice, the Plan and this Agreement, (b) accepts the Award subject to all of the terms and conditions of the Notice, the Plan and this Agreement, (c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Notice, the Plan or this Agreement, and (d) acknowledges receipt of a copy of the Notice, the Plan and this Agreement.
| 1. | DEFINITIONSAND CONSTRUCTION. |
1.1Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms in the Notice or the Plan.
1.2Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.
| 2. | Administration. |
All questions of interpretation concerning this Agreement shall be determined by the Board. All determinations by the Board shall be final and binding upon all persons having an interest in the Award. Any officer of a Participating Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation, or election.
| 3. | SETTLEMENTOFTHE AWARD. |
3.1No Additional Payment Required. The Participant shall not be required to make any additional monetary payment (other than applicable tax withholding, if any) upon settlement of the Award. Payment of the aggregate purchase price of the shares of Stock for which the Award is being settled shall be made in the form of past services rendered by the
1
Participant to a Participating Company or for its benefit which the Board, by resolution, determines to have a value not less than the aggregate purchase price of such shares of Stock.
3.2Issuance of Shares of Stock. Subject to the provisions of Section 3.6 below, the Company shall issue to the Participant, on a date within thirty (30) days following the earlier of (a) the Settlement Date (as defined in the Notice) or (b) the date of termination of the Participant’s Service, a number of whole shares of Stock equal to the vested Number of Restricted Stock Units (as defined in the Notice), rounded down to the nearest whole number. Such shares of Stock shall not be subject to any restriction on transfer other than any such restriction as may be required pursuant to Section 3.6. On the Settlement Date, the Company shall pay to the Participant cash in lieu of any fractional share of Stock represented by a fractional Restricted Stock Unit subject to this Award in an amount equal to the Fair Market Value on the Settlement Date of such fractional share of Stock.
3.3Installment Distributions. If a Participant has selected an annual installment distribution in the Election Form, each annual installment distribution must be for a minimum of 50 shares of Stock. If any Participant has selected an installment distribution which would require the Company to distribute less than 50 shares of Stock, the Participant’s Election Form shall be deemed revised to have originally required at least 50 shares of Stock to be distributed at each installment date. If a Participant is receiving installment distributions under the Plan, or has selected installment distributions at some future date, and terminates Service prior to the conclusion of such distributions, the Participant’s entire account balance shall be distributed in a single lump sum.
3.4Tax Withholding. At the time the Award is granted, or at any time thereafter as requested by the Company, the Participant hereby authorizes withholding from payroll and any other amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company, if any, which arise in connection with the Award or the issuance of shares of Stock in settlement thereof. The Company shall have no obligation to deliver shares of Stock until the tax withholding obligations of the Company have been satisfied by the Participant.
3.5Certificate Registration. The certificate for the shares as to which the Award is settled shall be registered in the name of the Participant, or, if applicable, in the names of the heirs of the Participant.
3.6Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and issuance of shares of Stock upon settlement of the Award shall be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any shares subject to the Award shall relieve the Company of any
2
liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of the Award, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.
3.7Fractional Shares. The Company shall not be required to issue fractional shares upon the settlement of the Award.
| 4. | DIVIDEND EQUIVALENT RIGHTS. |
Effective on the date of payment of cash dividends on the Stock occurring on and after the Date of Grant and before the Settlement Date, the Number of Restricted Stock Units subject to this Award shall be increased by such additional whole and/or fractional Restricted Stock Units determined by the following formula:
X = (A x B) / C
where,
“X” is the number of whole and/or fractional Restricted Stock Units to be credited with respect to the Award;
“A” is the amount of cash dividends paid on one share of Stock;
“B” is the number of whole and fractional Restricted Stock Units subject to this Award as of the cash dividend record date but immediately prior to the application of this Section; and
“C” is the Fair Market Value of a share of Stock on the cash dividend payment date.
Such additional Restricted Stock Units shall be subject to the same terms and conditions and shall be settled in the same manner and at the same time as the Restricted Stock Units originally subject to this Award.
| 5. | NONTRANSFERABILITYOFTHE AWARD. |
Prior the Settlement Date, neither this Award nor any Restricted Stock Unit subject to this Award shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except by will or by the laws of descent and distribution.
3
| 6. | EFFECTOF TERMINATIONOF SERVICE. |
If the Participant’s Service with the Company terminates for any reason, the Award, if not earlier settled, and to the extent vested as of the date of the Participant’s termination of Service, shall be settled as provided in Section 3.
| 7. | CANCELLATIONOF AWARD. |
NOTWITHSTANDINGANYOTHERPROVISIONOFTHIS RESTRICTED STOCK UNITS AGREEMENT ,IFATANYTIMEWITHINTWELVE (12)MONTHSAFTERTHE AWARDHASFULLYVESTED,THE PARTICIPANT’S SERVICEWITHTHE COMPANYISTERMINATEDFORANYREASON,WHETHERVOLUNTARILYORINVOLUNTARY,ANDATANYTIMEDURINGTHESIX (6)MONTHSBEFOREANDTHETWELVEMONTH (12)MONTHPERIODFOLLOWINGTHETERMINATIONOFPARTICIPANT’S SERVICE (“THE COVENANT PERIOD”)THE PARTICIPANTIS,INTHESOLEJUDGMENTOFTHE COMPANY,OTHERTHANASANEMPLOYEEORCONSULTANTFORTHE COMPANYINTHEEXECUTIONOF PARTICIPANT’SEMPLOYMENTDUTIESORPROVISIONOFCONSULTINGSERVICES,ASTHECASEMAYBE,EITHERDIRECTLYORINDIRECTLY,THROUGHANAFFILIATEDORCONTROLLEDENTITYORPERSON,ON PARTICIPANT’SOWNBEHALFORASAPARTNER,CONSULTANT,PROPRIETOR,PRINCIPAL,AGENT,CREDITOR,SECURITYHOLDER,TRUSTEEOROTHERWISEINANYOTHERCAPACITY (EXCEPTBYOWNERSHIPOFONEPERCENT (1%)ORLESSOFTHEOUTSTANDINGSTOCKOFANYPUBLICLYHELDCORPORATION),OWNING,MANAGING,OPERATING,FINANCING,CONTROLLING,INVESTING,PARTICIPATINGORENGAGINGIN,LENDING PARTICIPANT’SNAMEORCREDITTO,RENDERINGSERVICESORADVICETO,ORDEVOTINGANYMATERIALENDEAVOROREFFORTTO,THEFOLLOWINGCOMPANIES: QIAGEN; STRATAGENE; FISHER SCIENTIFIC INTERNATIONAL INC.; BECTON, DICKINSONAND COMPANY; BECKMAN COULTER; GE AMERSHAM BIOSCIENCES; TAKARA/CLONTECH; VWR INTERNATIONAL; APPLERA CORPORATION; ACTIVE MOTIF; SIGMA ALDRICH; WATERS CORPORATION; BIO-RAD LABORATORIES; CHARLES RIVER LABORATORIES; SEROLOGICALS CORPORATIONAND/OR AFFYMETRIX;OROTHERWISEACTINGAGAINSTTHEINTERESTSOFTHE COMPANY,INCLUDINGHIRING,EMPLOYINGORRECRUITINGANYEMPLOYEEOFTHE COMPANY;ORDISCLOSINGORMISUSINGANYCONFIDENTIAL,PROPRIETARYORMATERIALINFORMATIONCONCERNINGTHE COMPANY,THEN: (A)THIS AWARDSHALLIMMEDIATELYBECANCELEDANDNOTISSUABLE; (B)ANY STOCKISSUEDUPONORAFTERVESTINGOFTHIS AWARDSHALLBERETURNEDTOTHE COMPANYWITHOUTANYPAYMENTBYTHE COMPANY; (C)IFTHE PARTICIPANTHASSOLDORSELLSANY STOCKFROMTHE AWARDWITHINTHETIMEPERIODBETWEENTHEDATEOFTERMINATIONOFSERVICESANDTHESTARTOFTHE COVENANT PERIODAND/ORATANYTIMEDURINGTHE COVENANT PERIOD,THENALLPROCEEDSRECEIVEDBY PARTICPANTFROMTHESALE,WITHOUTREGARDTOANYSUBSEQUENTMARKETPRICEDECREASEORINCREASE,SHALLBEPAIDBYTHEPARTICIPANTTOTHECOMPANY;AND (D)STOCKISSUEDPURUSANTTOTHISAWARDDURINGTHE COVENANT PERIODSHALLBENON-TRANSFERABLEANDSHALLBEHELDINESCROWBYTHECOMPANYUNTILSUCHTIMEASTHE PARTICIPANTCOMPLIESINFULLWITHTHEPROVISIONSOFTHISSECTION 7.
| 8. | CHANGEIN CONTROL. |
In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the“Acquiror”), may, without the consent of the Participant, either assume the Company’s rights
4
and obligations under the Award or substitute for the Award a substantially equivalent award with respect to the Acquiror’s stock. The Award shall become 100% vested and settled in accordance with Section 4 immediately prior to the effective date of the Change in Control to the extent that the Award is neither assumed or substituted for by the Acquiror in connection with the Change in Control.Furthermore, notwithstanding the foregoing, if the corporation the stock of which is subject to the Award immediately prior to an Ownership Change Event described in Section 13.1(a)(i) of the Plan constituting a Change in Control is the surviving or continuing corporation and immediately after such Ownership Change Event less than fifty percent (50%) of the total combined voting power of its voting stock is held by another corporation or by other corporations that are members of an affiliated group within the meaning of Section 1504(a) of the Code without regard to the provisions of Section 1504(b) of the Code, the Award shall not terminate unless the Board otherwise provides in its discretion.
| 9. | ADJUSTMENTSFOR CHANGESIN CAPITAL STRUCTURE. |
Subject to any required action by the stockholders of the Company, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and class of shares subject to the Award, in order to prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” Any fractional share resulting from an adjustment pursuant to this Section 8 shall be rounded down to the nearest whole number. Such adjustments shall be determined by the Board, and its determination shall be final, binding and conclusive.
| 10. | RIGHTSASA STOCKHOLDER, DIRECTOR, EMPLOYEEOR CONSULTANT. |
The Participant shall have no rights as a stockholder with respect to any shares which may be issued in settlement of this Award until the date of the issuance of a certificate for such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 8 or pursuant to the Dividend Equivalent Rights. If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant’s employment is “at will” and is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant’s Service as a Director, an Employee or a Consultant, as the case may be, at any time.
5
| 11. | LEGENDS. |
The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section.
| 12. | MISCELLANEOUS PROVISIONS. |
12.1Further Instruments. The parties hereto agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
12.2Binding Effect. Subject to the restrictions on transfer set forth herein, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.
12.3Termination or Amendment. The Board may terminate or amend the Plan or the Award at any time; provided, however, that except as provided in Section 7 in connection with a Change in Control, no such termination or amendment may adversely affect the Award without the consent of the Participant unless such termination or amendment is necessary to comply with any applicable law or government regulation. No amendment or addition to this Agreement shall be effective unless in writing.
12.4Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (except to the extent that this Agreement provides for effectiveness only upon actual receipt of such notice) upon personal delivery, upon deposit in the United States Post Office, by registered or certified mail, or with an overnight courier service with postage and fees prepaid, addressed to the other party at the address shown below that party’s signature or at such other address as such party may designate in writing from time to time to the other party.
12.5Integrated Agreement. The Notice and this Agreement constitute the entire understanding and agreement of the Participant and the Participating Company Group with respect to the subject matter contained herein or therein and supersedes any prior agreements, understandings, restrictions, representations, or warranties among the Participant and the Participating Company Group with respect to such subject matter other than those as set forth or provided for herein or therein. To the extent contemplated herein or therein, the provisions of the Notice and the Agreement shall survive any settlement of the Award and shall remain in full force and effect.
12.6Applicable Law. This Agreement shall be governed by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within the State of California.
6
12.7Counterparts. The Notice may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7