Exhibit 10.2
INVITROGEN CORPORATION 1998 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 ESTABLISHMENT. Invitrogen Corporation hereby establishes the 1998
Employee Stock Purchase Plan (the "PLAN"), effective as of the effective
date of the initial registration by the Company of its Stock under Section
12 of the Securities Exchange Act of 1934, as amended (the "EFFECTIVE
DATE").
1.2 PURPOSE. The purpose of the Plan is to advance the interests of the
Company and its stockholders by providing an incentive to attract, retain
and reward Eligible Employees of the Participating Company Group and by
motivating such persons to contribute to the growth and profitability of the
Participating Company Group. The Plan provides such Eligible Employees with
an opportunity to acquire a proprietary interest in the Company through the
purchase of Stock. The Company intends that the Plan qualify as an "employee
stock purchase plan" under Section 423 of the Code (including any amendments
or replacements of such section), and the Plan shall be so construed.
1.3 TERM OF PLAN. The Plan shall continue in effect until the earlier of
its termination by the Board or the date on which all of the shares of Stock
available for issuance under the Plan have been issued.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Any term not expressly defined in the Plan but defined
for purposes of Section 423 of the Code shall have the same definition
herein. Whenever used herein, the following terms shall have their
respective meanings set forth below:
(a) "BOARD" means the Board of Directors of the Company. If one or
more Committees have been appointed by the Board to administer the Plan,
"Board" also means such Committee(s).
(b) "CODE" means the Internal Revenue Code of 1986, as amended, and
any applicable regulations promulgated thereunder.
(c) "COMMITTEE" means the Compensation Committee, or another
committee of the Board duly appointed to administer the Plan and having
such powers as shall be specified by the Board. Unless the powers of the
Committee have been specifically limited, the Committee shall have all of
the powers of the Board granted herein, including, without limitation,
the power to amend or terminate the Plan at any time, subject to the
terms of the Plan and any applicable limitations imposed by law.
(d) "COMPANY" means Invitrogen Corporation., a Delaware corporation,
or any successor corporation thereto.
(e) "COMPENSATION" means, with respect to any Offering Period,
base wages or salary, commissions, overtime, bonuses, annual awards,
other incentive payments, shift premiums, and all other compensation paid
in cash during such Offering Period before deduction for any
contributions to any plan maintained by a Participating Company and
described in Section 401(k) or Section 125 of the Code. Compensation
shall not include reimbursements of expenses, allowances, long-term
disability, workers' compensation or any amount deemed received without
the actual transfer of cash or any amounts directly or indirectly paid
pursuant to the Plan or any other stock purchase or stock option plan, or
any compensation other than base wages or salary.
(f) "ELIGIBLE EMPLOYEE" means an Employee who meets the requirements
set forth in Section 5 for eligibility to participate in the Plan.
(g) "EMPLOYEE" means a person treated as an employee of a
Participating Company for purposes of Section 423 of the Code. A
Participant shall be deemed to have ceased to be an Employee either upon
an actual termination of employment or upon the corporation employing the
Participant ceasing to be a Participating Company. For purposes of the
Plan, an individual shall not be deemed to have ceased to be an Employee
while such individual is on any military leave, sick leave, or other bona
fide leave of absence approved by the Company of ninety (90) days or
less. In the event an individual's leave of absence exceeds ninety (90)
days, the individual shall be deemed to have ceased to be an Employee on
the ninety-first (91st) day of such leave unless the individual's right
to reemployment with the Participating Company Group is guaranteed either
by statute or by contract. The Company shall determine in good faith and
in the exercise of its discretion whether an individual has become or has
ceased to be an Employee and the effective date of such individual's
employment or termination of employment, as the case may be. For purposes
of an individual's participation in or other rights, if any, under the
Plan as of the time of the Company's determination, all such
determinations by the Company shall be final, binding and conclusive,
notwithstanding that the Company or any governmental agency subsequently
makes a contrary determination.
(h) "FAIR MARKET VALUE" means, as of any date, if there is then a
public market for the Stock, the closing price of a share of Stock (or
the mean of the closing bid and asked prices if the Stock is so quoted
instead) as quoted on the Nasdaq National Market, the Nasdaq Small-Cap
Market or such other national or regional securities exchange or market
system constituting the primary market for the Stock, as reported in THE
WALL STREET JOURNAL or such other source as the Company deems reliable.
If the relevant date does not fall on a day on which the Stock has traded
on such securities exchange or market system, the date on which the Fair
Market Value shall be established shall be the last day on which the
Stock was so traded prior to the relevant date, or such other appropriate
day as shall be determined by the Board, in its sole discretion. If there
is then no public market for the Stock, the Fair Market Value on any
relevant date shall be as determined by the Board. Notwithstanding the
foregoing, the Fair Market Value per share of Stock on the Effective Date
shall be deemed to be the public offering price set forth in the final
prospectus filed with the Securities and Exchange Commission in
connection with the public offering of the Stock on the Effective Date.
(i) "OFFERING" means an offering of Stock as provided in Section 6.
(j) "OFFERING DATE" means, for any Offering, the first day of the
Offering Period with respect to such Offering.
(k) "OFFERING PERIOD" means a period established in accordance with
Section 6.1.
(l) "PARENT CORPORATION" means any present or future "parent
corporation" of the Company, as defined in Section 424(e) of the Code.
(m) "PARTICIPANT" means an Eligible Employee who has become a
participant in an Offering Period in accordance with Section 7 and
remains a participant in accordance with the Plan.
(n) "PARTICIPATING COMPANY" means the Company or any Parent
Corporation or Subsidiary Corporation designated by the Board as a
corporation the Employees of which may, if Eligible Employees,
participate in the Plan. The Board shall have the sole and absolute
discretion to determine from time to time which Parent Corporations or
Subsidiary Corporations shall be Participating Companies. Invitrogen BV,
the Company's Netherlands subsidiary shall be a Participating Company
unless and until the Board decides otherwise.
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(o) "PARTICIPATING COMPANY GROUP" means, at any point in time, the
Company and all other corporations collectively which are then
Participating Companies.
(p) "PURCHASE DATE" means, for any Purchase Period, the last day of
such period.
(q) "PURCHASE PERIOD" means a period, if any, established in
accordance with Section 6.2.
(r) "PURCHASE PRICE" means the price at which a share of Stock may be
purchased under the Plan, as determined in accordance with Section 9.
(s) "PURCHASE RIGHT" means an option granted to a Participant
pursuant to the Plan to purchase such shares of Stock as provided in
Section 8, which the Participant may or may not exercise during the
Offering Period in which such option is outstanding. Such option arises
from the right of a Participant to withdraw any accumulated payroll
deductions of the Participant not previously applied to the purchase of
Stock under the Plan and to terminate participation in the Plan at any
time during an Offering Period.
(t) "STOCK" means the common stock of the Company, as adjusted from
time to time in accordance with Section 4.2.
(u) "SUBSCRIPTION AGREEMENT" means a written agreement in such form
as specified by the Company, stating an Employee's election to
participate in the Plan and authorizing payroll deductions under the Plan
from the Employee's Compensation.
(v) "SUBSCRIPTION DATE" means the last business day prior to the
Offering Date of an Offering Period or such earlier date as the Company
shall establish.
(w) "SUBSIDIARY CORPORATION" means any present or future "subsidiary
corporation" of the Company, as defined in Section 424(f) of the Code.
2.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. 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.
3. ADMINISTRATION.
3.1 ADMINISTRATION BY THE BOARD. The Plan shall be administered by the
Board. All questions of interpretation of the Plan, of any form of agreement
or other document employed by the Company in the administration of the Plan,
or of any Purchase Right shall be determined by the Board and shall be final
and binding upon all persons having an interest in the Plan or the Purchase
Right. Subject to the provisions of the Plan, the Board shall determine all
of the relevant terms and conditions of Purchase Rights granted pursuant to
the Plan; provided, however, that all Participants granted Purchase Rights
pursuant to the Plan shall have the same rights and privileges within the
meaning of Section 423(b)(5) of the Code. All expenses incurred in
connection with the administration of the Plan shall be paid by the Company.
3.2 AUTHORITY OF OFFICERS. Any officer of the Company shall have the
authority to act on behalf of the Company with respect to any matter, right,
obligation, determination or election that is the responsibility of or that
is allocated to the Company herein, provided that the officer has apparent
authority with respect to such matter, right, obligation, determination or
election.
3.3 POLICIES AND PROCEDURES ESTABLISHED BY THE COMPANY. The Company may,
from time to time, consistent with the Plan and the requirements of
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Section 423 of the Code, establish, change or terminate such rules,
guidelines, policies, procedures, limitations, or adjustments as deemed
advisable by the Company, in its sole discretion, for the proper
administration of the Plan, including, without limitation, (a) a minimum
payroll deduction amount required for participation in an Offering, (b) a
limitation on the frequency or number of changes permitted in the rate of
payroll deduction during an Offering, (c) an exchange ratio applicable to
amounts withheld in a currency other than United States dollars, (d) a
payroll deduction greater than or less than the amount designated by a
Participant in order to adjust for the Company's delay or mistake in
processing a Subscription Agreement or in otherwise effecting a
Participant's election under the Plan or as advisable to comply with the
requirements of Section 423 of the Code, and (e) determination of the date
and manner by which the Fair Market Value of a share of Stock is determined
for purposes of administration of the Plan.
4. SHARES SUBJECT TO PLAN.
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as provided
in Section 4.2, the maximum aggregate number of shares of Stock that may be
issued under the Plan shall be two hundred fifty thousand (250,000) and
shall consist of authorized but unissued or reacquired shares of Stock, or
any combination thereof. If an outstanding Purchase Right for any reason
expires or is terminated or canceled, the shares of Stock allocable to the
unexercised portion of such Purchase Right shall again be available for
issuance under the Plan.
4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any
stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or similar change in the capital structure of
the Company, or in the event of any merger (including a merger effected for
the purpose of changing the Company's domicile), sale of assets or other
reorganization in which the Company is a party, appropriate adjustments
shall be made in the number and class of shares subject to the Plan and each
Purchase Right and in the Purchase Price. If a majority of the shares which
are of the same class as the shares that are subject to outstanding Purchase
Rights are exchanged for, converted into, or otherwise become (whether or
not pursuant to an Ownership Change Event) shares of another corporation
(the "NEW SHARES"), the Board may unilaterally amend the outstanding
Purchase Rights to provide that such Purchase Rights are exercisable for New
Shares. In the event of any such amendment, the number of shares subject to,
and the Purchase Price of, the outstanding Purchase Rights shall be adjusted
in a fair and equitable manner, as determined by the Board, in its sole
discretion. Notwithstanding the foregoing, any fractional share resulting
from an adjustment pursuant to this Section 4.2 shall be rounded down to the
nearest whole number, and in no event may the Purchase Price be decreased to
an amount less than the par value, if any, of the stock subject to the
Purchase Right. The adjustments determined by the Board pursuant to this
Section 4.2 shall be final, binding and conclusive.
5. ELIGIBILITY.
5.1 EMPLOYEES ELIGIBLE TO PARTICIPATE. Each Employee of a Participating
Company is eligible to participate in the Plan and shall be deemed an
Eligible Employee as of the first Offering Date following the commencement
of his/her service with a Participating Company.
5.2 EXCLUSION OF CERTAIN STOCKHOLDERS. Notwithstanding any provision of
the Plan to the contrary, no Employee shall be granted a Purchase Right
under the Plan if, immediately after such grant, such Employee would own or
hold options to purchase stock of the Company or of any Parent Corporation
or Subsidiary Corporation possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of such corporation,
as determined in accordance with Section 423(b)(3) of the Code. For purposes
of this Section 5.2, the attribution rules of Section 424(d) of the Code
shall apply in determining the stock ownership of such Employee.
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6. OFFERINGS.
6.1 OFFERING PERIODS. Except as otherwise set forth below, the Plan
shall be implemented by sequential Offerings of approximately twenty-four
(24) months duration (an "OFFERING PERIOD"). The first Offering Period shall
commence on the Effective Date and end on January 31, 2001. Subsequent
Offering Periods shall commence on the first day of February, May, August,
and November of each year and end on the last day of the 24th month of such
Offering Period. Notwithstanding the foregoing, the Board may establish a
different duration for one or more future Offering Periods or different
commencing or ending dates for such Offering Periods; provided, however,
that no Offering Period may have a duration exceeding twenty-seven (27)
months. If the first or last day of an Offering Period is not a day on which
the national or regional securities exchange or market system constituting
the primary market for the Stock is open for trading, the Company shall
specify the trading day that will be deemed the first or last day, as the
case may be, of the Offering Period.
6.2 PURCHASE PERIODS. Generally, each Offering Period will consist of
eight (8) quarterly Purchase Periods which begin on the first day of
February, May, August and November of each year and end on the last day of
the third month of each such Purchase Period (i.e. the following April,
July, October and January). The Purchase Period commencing on the Effective
Date shall end on the last day of April, 1999. The Board may establish
different Purchase Periods which may consist of two (2) or more consecutive
Purchase Periods having such duration as the Board shall specify. The last
day of each Purchase Period shall be a Purchase Date. If the first or last
day of a Purchase Period is not a day on which the national or regional
securities exchange or market system constituting the primary market for the
Stock is open for trading, the Company shall specify the trading day that
will be deemed the first or last day, as the case may be, of the Purchase
Period.
7. PARTICIPATION IN THE PLAN.
7.1 INITIAL PARTICIPATION. An Eligible Employee may become a Participant
in an Offering Period by delivering a properly completed Subscription
Agreement to the office designated by the Company not later than the close
of business for such office on the Subscription Date established by the
Company for such Offering Period. An Eligible Employee who does not deliver
a properly completed Subscription Agreement to the Company's designated
office on or before the Subscription Date for an Offering Period shall not
participate in the Plan for that Offering Period or for any subsequent
Offering Period unless such Eligible Employee subsequently delivers a
properly completed Subscription Agreement to the appropriate office of the
Company on or before the Subscription Date for such subsequent Offering
Period. An Employee who becomes an Eligible Employee after the Offering Date
of an Offering Period shall not be eligible to participate in such Offering
Period but may participate in any subsequent Offering Period provided such
Employee is still an Eligible Employee as of the Offering Date of such
subsequent Offering Period.
7.2 CONTINUED PARTICIPATION. A Participant shall automatically
participate in the next Offering Period commencing immediately after the
final Purchase Date of each Offering Period in which the Participant
participates provided that such Participant remains an Eligible Employee on
the Offering Date of the new Offering Period and has not either (a)
withdrawn from the Plan pursuant to Section 12.1 or (b) terminated
employment as provided in Section 13. A Participant who may automatically
participate in a subsequent Offering Period, as provided in this Section, is
not required to deliver any additional Subscription Agreement for the
subsequent Offering Period in order to continue participation in the Plan.
However, a Participant may deliver a new Subscription Agreement for a
subsequent Offering Period in accordance with the procedures set forth in
Section 7.1 if the Participant desires to change any of the elections
contained in the Participant's then effective Subscription Agreement.
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7.3 ONE OFFERING PERIOD PER PARTICIPANT. A Participant may participate
in only one Offering Period at any given time. A Participant's delivery to
the Company of a Subscription Agreement for any given Offering Period shall
constitute Participant's withdrawal from any concurrent Offering Period and
termination of any Purchase Right granted pursuant thereto.
8. RIGHT TO PURCHASE SHARES.
8.1 GRANT OF PURCHASE RIGHT. Except as set forth below, on the Offering
Date of each Offering Period, each Participant in such Offering Period shall
be granted automatically a Purchase Right consisting of an option to
purchase the lesser of (a) that number of whole shares of Stock determined
by dividing Fifty Thousand Dollars ($50,000) by the Fair Market Value of a
share of Stock on such Offering Date, reduced by the aggregate purchase
price of any Stock purchased during any concurrent Offering Period(s) or (b)
five thousand (5,000) shares of Stock, reduced by the number of shares of
Stock purchased during any concurrent Offering Period(s). No Purchase Right
shall be granted on an Offering Date to any person who is not, on such
Offering Date, an Eligible Employee.
8.2 PRO RATA ADJUSTMENT OF PURCHASE RIGHT. Notwithstanding the
provisions of Section 8.1, if the Board establishes an Offering Period of
any duration other than twenty four months, then (a) the dollar amount in
Section 8.1 shall be determined by multiplying $2,083.33 by the number of
months (rounded to the nearest whole month) in the Offering Period and
rounding to the nearest whole dollar, and (b) the share amount in Section
8.1 shall be determined by multiplying 208.33 shares by the number of months
(rounded to the nearest whole month) in the Offering Period and rounding to
the nearest whole share.
8.3 CALENDAR YEAR PURCHASE LIMITATION. Notwithstanding any provision of
the Plan to the contrary, no Participant shall be granted a Purchase Right
which permits his or her right to purchase shares of Stock under the Plan to
accrue at a rate which, when aggregated with such Participant's rights to
purchase shares under all other employee stock purchase plans of a
Participating Company intended to meet the requirements of Section 423 of
the Code, exceeds Twenty-Five Thousand Dollars ($25,000) in Fair Market
Value (or such other limit, if any, as may be imposed by the Code) for each
calendar year in which such Purchase Right is outstanding at any time. For
purposes of the preceding sentence, the Fair Market Value of shares
purchased during a given Offering Period shall be determined as of the
Offering Date for such Offering Period. The limitation described in this
Section 8.3 shall be applied in conformance with applicable regulations
under Section 423(b)(8) of the Code.
9. PURCHASE PRICE.
The Purchase Price at which each share of Stock may be acquired in an
Offering Period upon the exercise of all or any portion of a Purchase Right
shall be established by the Board; provided, however, that the Purchase Price
shall not be less than eighty-five percent (85%) of the lesser of (a) the Fair
Market Value of a share of Stock on the Offering Date of the Offering Period or
(b) the Fair Market Value of a share of Stock on the Purchase Date. Unless
otherwise provided by the Board prior to the commencement of an Offering Period,
the Purchase Price for that Offering Period shall be eighty-five percent (85%)
of the lesser of (a) the Fair Market Value of a share of Stock on the Offering
Date of the Offering Period, or (b) the Fair Market Value of a share of Stock on
the Purchase Date.
10. ACCUMULATION OF PURCHASE PRICE THROUGH PAYROLL DEDUCTION.
Shares of Stock acquired pursuant to the exercise of all or any portion of a
Purchase Right may be paid for only by means of payroll deductions from the
Participant's Compensation accumulated during the Offering Period for which such
Purchase Right was granted, subject to the following:
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10.1 AMOUNT OF PAYROLL DEDUCTIONS. Except as otherwise provided herein,
the amount to be deducted under the Plan from a Participant's Compensation
on each payday during an Offering Period shall be determined by the
Participant's Subscription Agreement. The Subscription Agreement shall set
forth the percentage of the Participant's Compensation to be deducted on
each payday during an Offering Period in whole percentages of not less than
one percent (1%) (except as a result of an election pursuant to Section 10.3
to stop payroll deductions made effective following the first payday during
an Offering) or more than fifteen percent (15%). Notwithstanding the
foregoing, the Board may change the limits on payroll deductions effective
as of any future Offering Date.
10.2 COMMENCEMENT OF PAYROLL DEDUCTIONS. Payroll deductions shall
commence on the first payday following the Offering Date and shall continue
to the end of the Offering Period unless sooner altered or terminated as
provided herein.
10.3 ELECTION TO CHANGE OR STOP PAYROLL DEDUCTIONS. During an Offering
Period, a Participant may elect to increase or decrease the rate of or to
stop deductions from his or her Compensation by delivering to the Company's
designated office an amended Subscription Agreement authorizing such change
on or before the "Change Notice Date." The "CHANGE NOTICE DATE" shall be a
date prior to the beginning of the first pay period for which such election
is to be effective as established by the Company from time to time and
announced to the Participants. A Participant who elects to decrease the rate
of his or her payroll deductions to zero percent (0%) shall nevertheless
remain a Participant in the current Offering Period unless such Participant
withdraws from the Plan as provided in Section 12.1.
10.4 ADMINISTRATIVE SUSPENSION OF PAYROLL DEDUCTIONS. The Company may,
in its sole discretion, suspend a Participant's payroll deductions under the
Plan as the Company deems advisable to avoid accumulating payroll deductions
in excess of the amount that could reasonably be anticipated to purchase the
maximum number of shares of Stock permitted during a calendar year under the
limit set forth in Section 8.3. Payroll deductions shall be resumed at the
rate specified in the Participant's then effective Subscription Agreement at
the beginning of the next Purchase Period the Purchase Date of which falls
in the following calendar year.
10.5 PARTICIPANT ACCOUNTS. Individual bookkeeping accounts shall be
maintained for each Participant. All payroll deductions from a Participant's
Compensation shall be credited to such Participant's Plan account and shall
be deposited with the general funds of the Company. All payroll deductions
received or held by the Company may be used by the Company for any corporate
purpose.
10.6 NO INTEREST PAID. Interest shall not be paid on sums deducted
from a Participant's Compensation pursuant to the Plan.
10.7 VOLUNTARY WITHDRAWAL FROM PLAN ACCOUNT. A Participant may withdraw
all or any portion of the payroll deductions credited to his or her Plan
account and not previously applied toward the purchase of Stock by
delivering to the Company's designated office a written notice on a form
provided by the Company for such purpose. A Participant who withdraws the
entire remaining balance credited to his or her Plan account shall be deemed
to have withdrawn from the Plan in accordance with Section 12.1. Amounts
withdrawn shall be returned to the Participant as soon as practicable after
the withdrawal and may not be applied to the purchase of shares in any
Offering under the Plan. The Company may from time to time establish or
change limitations on the frequency of withdrawals permitted under this
Section, establish a minimum dollar amount that must be retained in the
Participant's Plan account, or terminate the withdrawal right provided by
this Section.
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11. PURCHASE OF SHARES.
11.1 EXERCISE OF PURCHASE RIGHT. On each Purchase Date of an Offering
Period, each Participant who has not withdrawn from the Plan and whose
participation in the Offering has not terminated before such Purchase Date
shall automatically acquire pursuant to the exercise of the Participant's
Purchase Right the number of whole shares of Stock determined by dividing
(a) the total amount of the Participant's payroll deductions accumulated in
the Participant's Plan account during the Offering Period and not previously
applied toward the purchase of Stock by (b) the Purchase Price. However, in
no event shall the number of shares purchased by the Participant during an
Offering Period exceed the number of shares subject to the Participant's
Purchase Right. No shares of Stock shall be purchased on a Purchase Date on
behalf of a Participant whose participation in the Offering or the Plan has
terminated before such Purchase Date.
11.2 PRO RATA ALLOCATION OF SHARES. In the event that the number of
shares of Stock which might be purchased by all Participants in the Plan on
a Purchase Date exceeds the number of shares of Stock available in the Plan
as provided in Section 4.1, the Company shall make a pro rata allocation of
the remaining shares in as uniform a manner as shall be practicable and as
the Company shall determine to be equitable. Any fractional share resulting
from such pro rata allocation to any Participant shall be disregarded.
11.3 DELIVERY OF CERTIFICATES. As soon as practicable after each
Purchase Date, the Company shall arrange the delivery to each Participant,
as appropriate, of a certificate representing the shares acquired by the
Participant on such Purchase Date; provided that the Company may deliver
such shares to a broker that holds such shares in street name for the
benefit of the Participant. Shares to be delivered to a Participant under
the Plan shall be registered in the name of the Participant, or, if
requested by the Participant, in the name of the Participant and his or her
spouse, or, if applicable, in the names of the heirs of the Participant.
11.4 RETURN OF CASH BALANCE. Any cash balance remaining in a
Participant's Plan account following any Purchase Date shall be refunded to
the Participant as soon as practicable after such Purchase Date. However, if
the cash to be returned to a Participant pursuant to the preceding sentence
is an amount less than the amount that would have been necessary to purchase
an additional whole share of Stock on such Purchase Date, the Company may
retain such amount in the Participant's Plan account to be applied toward
the purchase of shares of Stock in the subsequent Purchase Period or
Offering Period, as the case may be.
11.5 TAX WITHHOLDING. At the time a Participant's Purchase Right is
exercised, in whole or in part, or at the time a Participant disposes of
some or all of the shares of Stock he or she acquires under the Plan, the
Participant shall make adequate provision for the foreign, federal, state
and local tax withholding obligations of the Participating Company Group, if
any, which arise upon exercise of the Purchase Right or upon such
disposition of shares, respectively. The Participating Company Group may,
but shall not be obligated to, withhold from the Participant's compensation
the amount necessary to meet such withholding obligations.
11.6 EXPIRATION OF PURCHASE RIGHT. Any portion of a Participant's
Purchase Right remaining unexercised after the end of the Offering Period to
which the Purchase Right relates shall expire immediately upon the end of
the Offering Period.
11.7 REPORTS TO PARTICIPANTS. Each Participant who has exercised all or
part of his or her Purchase Right shall receive, as soon as practicable
after the Purchase Date, a report of such Participant's Plan account setting
forth the total payroll deductions accumulated prior to such exercise, the
number of shares of Stock purchased, the Purchase Price for such shares, the
date of purchase and the cash balance, if any, remaining immediately after
such purchase that is to be refunded or retained in the Participant's Plan
account pursuant to Section 11.4. The report required by this Section may be
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delivered in such form and by such means, including by electronic
transmission, as the Company may determine.
12. WITHDRAWAL FROM THE PLAN.
12.1 VOLUNTARY WITHDRAWAL FROM THE PLAN. A Participant may withdraw from
the Plan by signing and delivering to the Company's designated office a
written notice of withdrawal on a form provided by the Company for such
purpose. Such withdrawal may be elected at any time prior to the end of an
Offering Period. A Participant who voluntarily withdraws from the Plan is
prohibited from resuming participation in the Plan in the same Offering from
which he or she withdrew, but may participate in any subsequent Offering by
again satisfying the requirements of Sections 5 and 7.1. The Company may
impose, from time to time, a requirement that the notice of withdrawal from
the Plan be on file with the Company's designated office for a reasonable
period prior to the effectiveness of the Participant's withdrawal.
12.2 RETURN OF PAYROLL DEDUCTIONS. Upon a Participant's voluntary
withdrawal from the Plan pursuant to Sections 12.1 or 10.7 or an automatic
withdrawal pursuant to Section 12.3, the Participant's accumulated payroll
deductions which have not been applied toward the purchase of shares of
Stock shall be refunded to the Participant as soon as practicable after the
withdrawal, without the payment of any interest, and the Participant's
interest in the Plan shall terminate. Such accumulated payroll deductions to
be refunded in accordance with this Section may not be applied to any other
Offering under the Plan.
12.3 AUTOMATIC WITHDRAWAL FROM AN OFFERING. If the Fair Market Value of
a share of Stock on a Purchase Date (other than the final Purchase Date of
an Offering Period) is less that the Fair Market Value of a share of Stock
on the Offering Date for such Offering Period, then every Participant shall
automatically be (a) withdrawn from such Offering Period after the
acquisition of shares of Stock on the Purchase Date and (b) enrolled in the
new Offering Period effective on its Offering Date. A Participant may elect
not to be automatically withdrawn from an Offering Period pursuant to this
Section 12.2 by delivering to the Company's designated office not later than
the close of business on the Offering Date of the new Offering Period a
written notice indicating such decision.
13. TERMINATION OF EMPLOYMENT OR ELIGIBILITY.
Upon a Participant's ceasing, prior to a Purchase Date, to be an Employee of
the Participating Company Group for any reason, including retirement, disability
or death, or the failure of a Participant to remain an Eligible Employee, the
Participant's participation in the Plan shall terminate immediately. In such
event, the payroll deductions credited to the Participant's Plan account since
the last Purchase Date shall, as soon as practicable, be returned to the
Participant or, in the case of the Participant's death, to the Participant's
legal representative, and all of the Participant's rights under the Plan shall
terminate. Interest shall not be paid on sums returned pursuant to this Section
13. A Participant whose participation has been so terminated may again become
eligible to participate in the Plan by again satisfying the requirements of
Sections 5 and 7.1.
14. CHANGE IN CONTROL.
14.1 DEFINITIONS.
(a) An "OWNERSHIP CHANGE EVENT" shall be deemed to have occurred if
any of the following occurs with respect to the Company: (i) the direct
or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than fifty
percent (50%) of the voting stock of the Company; (ii) a merger or
consolidation in which the Company is a party; (iii) the sale, exchange,
or transfer of all or substantially all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
9
(b) A "CHANGE IN CONTROL" shall mean an Ownership Change Event or a
series of related Ownership Change Events (collectively, the
"TRANSACTION") wherein the stockholders of the Company immediately before
the Transaction do not retain immediately after the Transaction, in
substantially the same proportions as their ownership of shares of the
Company's voting stock immediately before the Transaction, direct or
indirect beneficial ownership of more than fifty percent (50%) of the
total combined voting power of the outstanding voting stock of the
Company or the corporation or corporations to which the assets of the
Company were transferred (the "TRANSFEREE CORPORATION(S)"), as the case
may be. For purposes of the preceding sentence, indirect beneficial
ownership shall include, without limitation, an interest resulting from
ownership of the voting stock of one or more corporations which, as a
result of the Transaction, own the Company or the Transferee
Corporation(s), as the case may be, either directly or through one or
more subsidiary corporations. The Board shall have the right to determine
whether multiple sales or exchanges of the voting stock of the Company or
multiple Ownership Change Events are related, and its determination shall
be final, binding and conclusive.
14.2 EFFECT OF CHANGE IN CONTROL ON PURCHASE RIGHTS. In the event of a
Change in Control, the surviving, continuing, successor, or purchasing
corporation or parent corporation thereof, as the case may be (the
"ACQUIRING CORPORATION"), may assume the Company's rights and obligations
under the Plan. If the Acquiring Corporation elects not to assume the
Company's rights and obligations under outstanding Purchase Rights, the
Purchase Date of the then current Offering Period (or Purchase Period) shall
be accelerated to a date before the date of the Change in Control specified
by the Board, but the number of shares of Stock subject to outstanding
Purchase Rights shall not be adjusted. All Purchase Rights which are neither
assumed by the Acquiring Corporation in connection with the Change in
Control nor exercised as of the date of the Change in Control shall
terminate and cease to be outstanding effective as of the date of the Change
in Control.
15. NONTRANSFERABILITY OF PURCHASE RIGHTS.
A Purchase Right may not be transferred in any manner otherwise than by will
or the laws of descent and distribution and shall be exercisable during the
lifetime of the Participant only by the Participant.
16. COMPLIANCE WITH SECURITIES LAW.
The issuance of shares under the Plan shall be subject to compliance with
all applicable requirements of federal, state and foreign law with respect to
such securities. A Purchase Right may not be exercised if the issuance of shares
upon such exercise would constitute a violation of any applicable federal, state
or foreign securities laws or other law or regulations or the requirements of
any securities exchange or market system upon which the Stock may then be
listed. In addition, no Purchase Right may be exercised unless (a) a
registration statement under the Securities Act of1933, as amended, shall at the
time of exercise of the Purchase Right be in effect with respect to the shares
issuable upon exercise of the Purchase Right, or (b) in the opinion of legal
counsel to the Company, the shares issuable upon exercise of the Purchase Right
may be issued in accordance with the terms of an applicable exemption from the
registration requirements of said Act. 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 under the Plan shall relieve the Company of any 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 exercise of a Purchase
Right, 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.
10
17. RIGHTS AS A STOCKHOLDER AND EMPLOYEE.
A Participant shall have no rights as a stockholder by virtue of the
Participant's participation in the Plan until the date of the issuance of a
certificate for the shares purchased pursuant to the exercise of the
Participant's Purchase Right (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 4.2. Nothing herein shall confer upon a Participant any
right to continue in the employ of the Participating Company Group or interfere
in any way with any right of the Participating Company Group to terminate the
Participant's employment at any time.
18. LEGENDS.
The Company may at any time place legends or other identifying symbols
referencing any applicable federal, state or foreign securities law restrictions
or any provision convenient in the administration of the Plan on some or all of
the certificates representing shares of Stock issued under the Plan. The
Participant shall, at the request of the Company, promptly present to the
Company any and all certificates representing shares acquired pursuant to a
Purchase Right in the possession of the Participant in order to carry out the
provisions of this Section.
19. NOTIFICATION OF SALE OF SHARES.
The Company may require the Participant to give the Company prompt notice of
any disposition of shares acquired by exercise of a Purchase Right within two
years from the date of granting such Purchase Right or one year from the date of
exercise of such Purchase Right. The Company may require that until such time as
a Participant disposes of shares acquired upon exercise of a Purchase Right, the
Participant shall hold all such shares in the Participant's name (or, if elected
by the Participant, in the name of the Participant and his or her spouse but not
in the name of any nominee) until the lapse of the time periods with respect to
such Purchase Right referred to in the preceding sentence. The Company may
direct that the certificates evidencing shares acquired by exercise of a
Purchase Right refer to such requirement to give prompt notice of disposition.
20. NOTICES.
All notices or other communications by a Participant to the Company under or
in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
21. INDEMNIFICATION.
In addition to such other rights of indemnification as they may have as
members of the Board or officers or employees of the Participating Company
Group, members of the Board and any officers or employees of the Participating
Company Group to whom authority to act for the Board or the Company is delegated
shall be indemnified by the Company against all reasonable expenses, including
attorneys' fees, actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same.
11
22. AMENDMENT OR TERMINATION OF THE PLAN.
The Board may at any time amend or terminate the Plan, except that (a) such
termination shall not affect Purchase Rights previously granted under the Plan,
except as permitted under the Plan, provided however that the Board may
terminate the Plan (and any Offerings and future Purchase Rights) on any
Purchase Date if the Board determines that such termination is in the best
interests of the Company and its stockholders; and (b) no amendment may
adversely affect a Purchase Right previously granted under the Plan (except to
the extent permitted by the Plan or as may be necessary to qualify the Plan as
an employee stock purchase plan pursuant to Section 423 of the Code or to obtain
qualification or registration of the shares of Stock under applicable federal,
state or foreign securities laws). In addition, an amendment to the Plan must be
approved by the stockholders of the Company within twelve (12) months of the
adoption of such amendment if such amendment would authorize the sale of more
shares than are authorized for issuance under the Plan or would change the
definition of the corporations that may be designated by the Board as
Participating Companies. In the event that the Board approves an amendment to
increase the number of shares authorized for issuance under the Plan (the
"ADDITIONAL SHARES"), the Board, in its sole discretion, may specify that such
Additional Shares may only be issued pursuant to Purchase Rights granted after
the date on which the stockholders of the Company approve such amendment, and
such designation by the Board shall not be deemed to have adversely affected any
Purchase Right granted prior to the date on which the stockholders approve the
amendment.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that
the foregoing Invitrogen Corporation 1998 Employee Stock Purchase Plan was duly
adopted by the Board of Directors of the Company on January 15, 1999.
/s/ JOSEPH M. FERNANDEZ
--------------------------------------
Joseph M. Fernandez
PLAN HISTORY
November 20, 1998 Board adopts the Plan, with an initial reserve of 250,000
shares.
January 15, 1999 Stockholders approve Plan, with an initial reserve of 250,000
shares.
12
INVITROGEN CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
NAME (Please print): ___________________________________________________________
(Last) (First) (Middle)
/ / Original Application for the Offering Period beginning _______, 199__.
/ / Change in Payroll Deduction rate effective with the pay period ending
_______________, 199__.
I hereby elect to participate in the 1998 Employee Stock Purchase Plan (the
"PLAN") of Invitrogen Corporation (the "COMPANY") and subscribe to purchase
shares of the Company's Stock in accordance with this Subscription Agreement and
the Plan.
I hereby authorize payroll deductions in the amount of ______ percent (in
whole percentages not less than 1% (unless an election to stop deductions is
being made) or more than 10%) of my "COMPENSATION" on each payday throughout the
"OFFERING PERIOD" in accordance with the Plan. I understand that these payroll
deductions will be accumulated for the purchase of shares of Stock at the
applicable purchase price determined in accordance with the Plan. I understand
that, except as otherwise provided by the Plan, I will automatically purchase
shares on each Purchase Date under the Plan unless I withdraw from the Plan by
giving written notice on a form provided by the Company or unless my employment
terminates.
I understand that I will automatically participate in each subsequent
Offering that commences immediately after the last day of an Offering in which I
am participating until I withdraw from the Plan by giving written notice on a
form provided by the Company or I cease to be eligible to participate in the
Plan.
Shares I purchase under the Plan should be issued in the name(s) set forth
below. (Shares may be issued in the participant's name alone or together with
the participant's spouse as community property or in joint tenancy.)
NAME(S): ___________________________________________________________________
ADDRESS: ___________________________________________________________________
MY SOCIAL SECURITY NUMBER: _________________________________________________
I agree to make adequate provision for the federal, state, local and foreign
tax withholding obligations, if any, which may arise upon my purchase of shares
under the Plan and/or my disposition of such shares. The Company may, but will
not be obligated to, withhold from my compensation the amount necessary to meet
such withholding obligations.
I agree that while I hold shares acquired under the Plan, unless otherwise
permitted by the Company, I will hold such shares in the name(s) entered above
(and not in the name of any nominee) for at least two years from the first day
of the Offering Period in which, and at least one year from the Purchase Date on
which, I acquired such shares (this restriction only applies to the name(s) in
which shares are held and does not affect the ability to dispose of Plan
shares).
I AGREE THAT I WILL NOTIFY THE CHIEF FINANCIAL OFFICER OF THE COMPANY IN
WRITING WITHIN 30 DAYS AFTER ANY SALE, GIFT, TRANSFER OR OTHER DISPOSITION OF
ANY KIND PRIOR TO THE END OF THE PERIODS REFERRED TO IN THE PRECEDING PARAGRAPH
(A "DISQUALIFYING DISPOSITION") OF ANY SHARES I PURCHASED UNDER THE PLAN. I
FURTHER AGREE THAT IF I DO NOT RESPOND WITHIN 30 DAYS OF THE DATE OF A
DISQUALIFYING DISPOSITION SURVEY DELIVERED TO ME, THE COMPANY MAY TREAT MY
NONRESPONSE AS MY NOTICE TO
13
THE COMPANY OF A DISQUALIFYING DISPOSITION AND MAY COMPUTE AND REPORT TO THE
INTERNAL REVENUE SERVICE THE ORDINARY INCOME I MUST RECOGNIZE UPON SUCH
DISQUALIFYING DISPOSITION.
I am familiar with the provisions of the Plan and agree to participate in
the Plan subject to all of its provisions. I understand that the Board of
Directors of the Company reserves the right to terminate the Plan or to amend
the Plan and my right to purchase stock under the Plan to the extent provided by
the Plan. I understand that the effectiveness of this Subscription Agreement is
dependent upon my eligibility to participate in the Plan.
Date: ______________ Signature: ___________________________________
14
INVITROGEN CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
NAME (Please print): _______________________________________________________
(Last) (First) (Middle)
I hereby elect to withdraw from the Offering under Invitrogen Corporation
1998 Employee Stock Purchase Plan (the "PLAN") which began on ___________, 19___
and in which I am currently participating (the "CURRENT OFFERING").
ELECT EITHER A OR B BELOW:
/ / A. I elect to terminate immediately my participation in the
Current Offering and in the Plan.
I request that the Company cease all further payroll
deductions from my Compensation under the Plan (provided that
I have given sufficient notice prior to the next payday). I
request that all payroll deductions credited to my account
under the Plan (if any) not previously used to purchase shares
under the Plan shall not be used to purchase shares on the
next Purchase Date of the Current Offering. Instead, I request
that all such amounts be paid to me as soon as practicable. I
understand that this election immediately terminates my
interest in the Current Offering and in the Plan.
/ / B. I elect to terminate my participation in the Current
Offering and in the Plan following my purchase of shares on
the next Purchase Date of the Current Offering.
I request that the Company cease all further payroll
deductions from my Compensation under the Plan (provided that
I have given sufficient notice prior to the next payday). I
request that all payroll deductions credited to my account
under the Plan (if any) not previously used to purchase shares
under the Plan shall be used to purchase shares on the next
Purchase Date of the Current Offering to the extent permitted
by the Plan. I understand that this election will terminate my
interest in the Current Offering and in the Plan immediately
following such purchase. I request that any cash balance
remaining in my account under the Plan after my purchase of
shares be paid to me as soon as practicable.
I understand that by making this election I am terminating my interest in
the Plan and that no further payroll deductions will be made (provided that I
have given sufficient notice prior to the next payday) unless I elect in
accordance with the Plan to become a participant in another Offering under the
Plan by filing a new Subscription Agreement with the Company.
Date: ______________________________ Signature: _____________________________
15
FIRST AMENDMENT TO THE
INVITROGEN CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
Pursuant to Section 22 of the Invitrogen Corporation 1998 Employee Stock
Purchase Plan (the "Plan"), said Plan is hereby amended as follows:
1. SECTION 4.1 SHALL BE AMENDED TO STATE IN ITS ENTIRETY AS FOLLOWS:
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of
Stock that may be issued under the Plan shall be three hundred fifty
thousand (350,000) and shall consist of authorized but unissued or
reacquired shares of Stock, or any combination thereof. If an
outstanding Purchase Right for any reason expires or is terminated or
canceled, the shares of Stock allocable to the unexercised portion of
such Purchase Right shall again be available for issuance under the
Plan.
2. The additional 100,000 shares authorized for issuance under the Plan by
this Amendment may only be issued pursuant to Purchase Rights granted after the
date on which the stockholders of the Company approve this Amendment.
SECOND AMENDMENT TO THE
INVITROGEN CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
Pursuant to Section 22 of the Invitrogen Corporation 1998 Employee Stock
Purchase Plan (the "Plan"), said Plan is hereby amended as follows:
1. Section 4.1 shall be amended to state in its entirety as follows:
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to
adjustment as provided in Section 4.2, the maximum aggregate number
of shares of Stock that may be issued under the Plan shall be five
hundred fifty thousand (550,000) and shall consist of authorized but
unissued or reacquired shares of Stock, or any combination thereof.
If an outstanding Purchase Right for any reason expires or is
terminated or canceled, the shares of Stock allocable to the
unexercised portion of such Purchase Right shall again be available
for issuance under the Plan.
2. The additional 200,000 shares authorized for issuance under the Plan by this
Amendment may only be issued pursuant to Purchase Rights granted after the date
on which the stockholders of the Company approve this Amendment.
IN WITNESS WHEREOF, the undersigned Secretary of Invitrogen Corporation
certifies that the foregoing amendment to the 1998 Stock Purchase Plan was duly
adopted by the Board of Directors on August 8, 2000.
Dated: August 11, 2000
INVITROGEN CORPORATION
By: /s/ WARNER R. BROADDUS
-----------------------------------
Warner R. Broaddus
Its: Secretary