|
EXHIBIT
99.3
AMENDED AND
RESTATED
CHANGE-IN-CONTROL
AGREEMENT
AGREEMENT by and between
INVITROGEN CORPORATION, a Delaware Corporation (the
“Company”), and Gregory T. Lucier (the
“Executive”), dated as of the 28th day of February
2007.
The Board of Directors of the
Company (the “Board”), has determined that it is in the
best interests of the Company and its stockholders to assure that
the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
in Control (as defined below). The Board believes it is imperative
to diminish the inevitable distraction of the Executive by virtue
of the personal uncertainties and risks created by a pending or
threatened Change in Control and to encourage the Executive’s
full attention and dedication to the Company currently and in the
event of any threatened or pending Change in Control, and to
provide the Executive with compensation and benefits arrangements
upon a Change in Control which ensure that the compensation and
benefits expectations of the Executive will be satisfied and which
are competitive with those of other corporations. Therefore, in
order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS:
1. Certain
Definitions
(a) The “Effective
Date” shall be the first date during the “Change in
Control Period” (as defined in Section l(b)) on which a
Change in Control occurs; provided that the Executive is employed
on that date. Anything in this Agreement to the contrary
notwithstanding, if the Executive’s employment with the
Company is terminated or the Executive ceases to be an officer of
the Company prior to the date on which a Change in Control occurs,
and it is reasonably demonstrated by the Executive that such
termination of employment or cessation of status as an officer
(i) was at the request of a third party who has taken steps
reasonably calculated to effect the Change in Control or
(ii) otherwise arose in connection with or anticipation of the
Change in Control, then for all purposes of this Agreement the
“Effective Date” shall mean the date immediately prior
to the date of such termination of employment or cessation of
status as an officer.
(b) The “Change in
Control Period” is the period commencing on the date hereof
and ending on the second anniversary of such date, provided,
however, that commencing on the date one year after the date
hereof, and on each annual anniversary of such date (such date and
each annual anniversary thereof is hereinafter referred to as the
“Renewal Date”), the Change in Control Period shall be
automatically extended so as to terminate two years from such
Renewal Date, unless at least 60 days prior to the Renewal Date the
Company shall give written notice to the Executive that the Change
in Control Period shall not be so extended.
2. Change in Control .
For the purpose of this Agreement:
(a) a “Change in
Control” shall mean:
(i) Any acquisition or series
of acquisitions, other than from the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of 50% or more of
either the then outstanding shares of common stock of the Company
(the “Outstanding Company Common Stock”) or the
combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”),
provided, however , that (A) any acquisition by the
Company, or any of its subsidiaries, (B) any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries, or
(C) any acquisition or series of acquisitions which results in
any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) acquiring
beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of more than 50% of the Outstanding Company Common
Stock and while such a beneficial owner such individual, entity or
group does not exercise the voting power of his, her or its
Outstanding Company Common Stock or otherwise exercise control with
respect to any matter concerning or affecting the Company and
promptly sells, transfers, assigns or otherwise disposes of that
number of shares of Outstanding Company Common Stock necessary to
reduce his, her or its beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of the Outstanding Company
Common Stock to below 50%, as the case may be, shall not constitute
a Change in Control; or
(ii) Individuals who as of
April 27, 2001, constitute the Board of Directors of the
Company (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board of Directors of the
Company, provided that any individual becoming a director
subsequent to April 27, 2001, whose election, or nomination
for election, by the Company’s stockholders was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board, shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office is in
connection with an actual or threatened election contest (as such
terms are used in Rule 14a-11 of the Regulation 14A promulgated
under the Exchange Act) relating to the election of directors of
the Company; or
(iii) Approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company, or of the sale or other disposition of
all or substantially all of the assets of the Company, or of a
reorganization, merger or consolidation of the Company, in each
case, with respect to which all or substantially all of the
individuals and entities who were the respective beneficial owners
of the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such reorganization, merger
or consolidation do not, following such reorganization, merger or
consolidation beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common stock
and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such
reorganization, merger or consolidation.
- 2 -
3. Employment Period .
The Company hereby agrees to continue the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the
Company, for the period commencing on the Effective Date and ending
at the end of the 24th month following the Effective Date (the
“Employment Period”).
4. Terms of
Employment
(a) Position and
Duties .
(i) During the Employment
Period, (A) the Executive’s position, authority, duties
and responsibilities shall not be substantially diminished from the
most significant of those held, exercised and assigned at any time
during the 90-day period immediately preceding the Effective Date
and (B) the Executive’s services shall be performed at
the location where the Executive was employed immediately preceding
the Effective Date or any office or location less than 50 miles
from such location.
(ii) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder,
to use the Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for
the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the
Company.
(b) Compensation
.
(i) Base Salary .
During the Employment Period, the Executive shall receive an annual
base salary (“Annual Base Salary”), which shall be paid
at a monthly rate, at least equal to the highest annualized (for
any year with respect to which the Executive has been employed by
the Company for less than twelve full months) base salary paid or
payable to the Executive by the Company and its affiliated
companies in respect of the three years immediately preceding the
Effective Date. During the Employment Period, the Annual Base
Salary shall be reviewed at least annually and shall be increased
at any time and from time to time as shall be substantially
consistent with increases in base salary generally awarded in the
ordinary course of
- 3 -
business to other peer executives of the
Company and its affiliated companies. Any increase in Annual Base
Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be
reduced after any such increase and the term Annual Base Salary as
utilized in this Agreement shall refer to the Annual Base Salary as
so increased. As used in this Agreement, the term “affiliated
companies” includes any company controlled by, controlling or
under common control with the Company.
(ii) Annual Bonus . In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year during the Employment Period, an annual bonus (the
“Annual Bonus”) in cash at least equal to the higher of
either (A) the average annualized (for any fiscal year
consisting of less than twelve full months or with respect to which
the Executive has been employed by the Company for less than twelve
full months) Incentive Compensation Plan bonus paid, or payable but
for any deferral to the Executive by the Company and its affiliated
companies under the Company’s deferred compensation
arrangements, in respect of the three fiscal years or lesser number
of fiscal years during which the Executive has been employed by the
Company immediately preceding the fiscal year in which the
Effective Date occurs, or (B) in the event the annual bonus
under an Incentive Compensation Plan is paid, or payable but for
any deferral to the Executive by the Company and its affiliated
companies under the Company’s deferred compensation
arrangement, in respect of the fiscal year immediately preceding
the fiscal year in which the Effective Date occurs was based upon a
formula, guaranteed amount, or plan in which the Executive
participated, then such Annual Bonus shall be at least equal to the
bonus which would be payable based on such formula, guaranteed
amount, or plan had the Executive’s participation therein and
level of participation remained in effect following the Effective
Date. For purposes of this agreement, the calculation of the Annual
Bonus shall not include any payments under a Long Term Incentive
Plan or the Signing Bonus defined in the Employment Agreement
entered into between the Executive and the Company effective as of
May 26, 2003 (the “Employment Agreement”). Each
such Annual Bonus shall be paid no later than the end of the third
month of the fiscal year next following the fiscal year for which
the Annual Bonus is awarded, unless the Executive shall elect to
defer the receipt of such Annual Bonus.
(iii) Incentive, Savings
and Retirement Plans . In addition to Annual Base Salary and
Annual Bonus payable as hereinabove provided, the Executive shall
be entitled to participate during the Employment Period in all
incentive (including but not limited to long-term incentive bonus),
savings and retirement plans, practices, policies and programs
generally applicable to other peer executives of the Company and
its affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Executive with
incentive opportunities (measured with respect to both regular and
special incentive opportunities), savings opportunities and
retirement benefits opportunities, in each case, less favorable, in
the aggregate, than the most favorable of those provided by the
Company and its affiliated companies for the Executive under such
plans, practices, policies and programs as in effect at any time
during the 90-day period immediately preceding the Effective
Date.
(iv) Welfare Benefit
Plans . During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided
- 4 -
by the Company and its affiliated
companies (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent generally applicable to other peer executives of the
Company and its affiliated companies, but in no event shall such
plans, practices, policies and programs provide benefits which are
less favorable, in the aggregate, than the most favorable of such
plans, practices, policies and programs in effect for the Executive
and/or the Executive’s family at any time during the 90-day
period immediately preceding the Effective Date.
(v) Business Expenses
. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable business expenses
incurred by the Executive in accordance with the most favorable
policies, practices and procedures of the Company and its
affiliated companies in effect for the Executive at any time during
the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect at any time
thereafter generally with respect to other peer executives of the
Company and its affiliated companies.
(vi) Fringe Benefits .
During the Employment Period, the Executive shall be entitled to
fringe benefits in accordance with the most favorable plans,
practices, programs and policies of the Company and its affiliated
companies in effect for the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect at any time thereafter
generally with respect to other peer executives of the Company and
its affiliated companies.
(vii) Office and Support
Staff . During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated
companies at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
(viii) Vacation .
During the Employment Period, the Executive shall be entitled to
paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated
companies as in effect for the Executive at any time during the
90-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect at any time thereafter
generally with respect to other peer executives of the Company and
its affiliated companies.
5. Termination of
Employment
(a) Death or
Disability. The Executive’s employment shall terminate
automatically upon the Executive’s death during the
Employment Period. If the Company determines in good faith that the
Disability (as defined below) of the Executive has occurred during
the Employment Period, it may give to the Executive written notice
in accordance with Section 18(b) of this Agreement of its
intention to terminate the Executive’s employment. In such
event, the
- 5 -
Executive’s employment with the
Company shall terminate effective on the 30th day after receipt of
such notice by the Executive (the “Disability Effective
Date”), provided that, within the 30 days after such receipt,
the Executive shall not have returned to full-time performance of
the Executive’s duties. For purposes of this Agreement,
“Disability” means the absence of the Executive from
the Executive’s duties with the Company on a full-time basis
for 180 consecutive business days as a result of incapacity due to
mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers
and acceptable to the Executive or the Executive’s legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
(b) Cause . The
Company may terminate the Executive’s employment during the
Employment Period for “Cause” only in accordance with
the provisions set forth herein.
(i) For purposes of this
Agreement, “Cause” means (A) repeated violations
by the Executive of the Executive’s material responsibilities
and material duties under Section 4(a) of this Agreement which
are demonstrably willful and deliberate on the Executive’s
part and which are not remedied in a reasonable period of time
after receipt of written notice from the Company,
(B) commission of an intentional act of fraud, embezzlement or
theft by the Executive in connection with the Executive’s
duties or in the course of the Executive’s employment with
the Company or its affiliated companies, (C) violation of any
law, regulation, or rule applicable to the Company’s business
or reputation, including, without limitation securities laws,
(D) causing intentional wrongful damage to property of the
Company or its affiliated companies, (E) intentionally and
wrongfully disclosing secret processes or confidential information
of the Company or its affiliated companies, (F) conviction of,
or plea of nolo contendere to, a felony, which conviction or
plea materially harms the business or reputation of the Company, or
(G) participating, without the Company’s express written
consent, in the management of any business enterprise which engages
in substantial and direct competition with the Company or its
affiliated companies, provided that in the case of clauses
(A) through (F), any such act or omission shall have been
materially harmful to the Company or its affiliated companies. For
purposes of this definition, no act or failure to act shall be
deemed “willful” unless effected by the Executive not
in good faith and without a reasonable belief that such action or
failure to act was in or not opposed to the Company’s best
interests.
(ii) The Company may not
terminate the Executive’s employment for Cause under clause
(B), (C), (D), (E), or (F) of such definition set forth above
unless: (a) the Company provides the Executive with written
notice of its intent to consider termination of the
Executive’s employment for Cause, including a detailed
description of the specific reasons which form the basis for such
consideration; (b) within thirty (30) days after the date
such notice is provided, the Executive shall have a reasonable
opportunity to appear before the Board of Directors, with or
without legal representation, at the Executive’s election, to
present arguments and evidence on his own behalf to defend such act
or acts, or failure to act, and, if such act or failure to act is
correctable, the Executive shall be given thirty (30) days
after such meeting to correct such act or failure to act; and
(c) following presentation to the Board of Directors as
provided in clause (b) above or the Executive’s failure
to appear before the Board of Directors at a date and time
specified in the notice and, following expiration of the thirty
(30) -day period in
- 6 -
which to correct such acts or failures
to act that are correctable, the Executive may be terminated for
Cause only if (1) the Board of Directors, by an affirmative
vote of a majority of its members (excluding the Executive and any
other member of the Board of Directors reasonably believed by the
Board of Directors to be involved in the events leading the Board
of Directors to terminate the Executive for Cause), determines that
the acts or failures to act of the Executive specified in the
notice occurred and remained uncorrected, and the Executive’s
employment should accordingly be terminated for Cause; and
(2) the Board of Directors provides the Executive with a
written determination setting forth in specific detail the basis of
such termination of employment which are consistent with the
reasons set forth in the notice.
(c) Good Reason . The
Executive’s employment may be terminated during the
Employment Period by the Executive for “Good Reason.”
For purposes of this Agreement, “Good Reason”
means
(i) a substantial diminution
in the Executive’s position, authority, duties or
responsibilities as contemplated by Section 4(a) of this
Agreement, excluding non-substantial changes in title or office,
and excluding any isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company
promptly after receipt of written notice thereof given by the
Executive;
(ii) any failure by the
Company to comply with any of the provisions of Section 4(b)
of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of written notice
thereof given by the Executive;
(iii) the Company requiring
the Executive to be based at any office or location other than that
described in Section 4(a)(i)(B) hereof or, requiring the
Executive to travel away from his or her office in the course of
discharging responsibilities or duties which is significantly more
frequent (in terms of either consecutive days or aggregate days in
any calendar year) than was required prior to the Change in
Control;
(iv) any purported
termination by the Company of the Executive’s employment
otherwise than as expressly permitted by this Agreement;
or
(v) any failure by any
successor to the Company to comply with and satisfy
Section 17(c) of this Agreement, provided that such successor
has received at least ten (10) days prior written notice from
the Company or the Executive of the requirements of
Section 17(c) of this Agreement.
For the purposes of this
Section 5(c), any good faith determination of “Good
Reason” made by the Executive shall be conclusive.
(d) Notice of
Termination . Any termination by th
|
