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EXHIBIT
10.2
INVITROGEN
CORPORATION
PERFORMANCE SHARE AWARD
AGREEMENT
Invitrogen Corporation has
granted to the individual (the “
Participant ” ) named in the Notice
of Grant of Performance Shares (the “
Notice ” ) to which this Performance
Share Award Agreement (the “ Agreement
” ) is attached an award (the “
Award ” ) of Performance Shares 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.
DEFINITIONS AND CONSTRUCTION .
1.1 Definitions
. Unless otherwise defined herein, capitalized terms
shall have the meanings assigned to such terms in the Notice or the
Plan.
1.2 Construction
. 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.
SETTLEMENT OF THE AWARD .
3.1 No 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 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.
3.2 Issuance 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 Settlement
Date (as defined in the Notice), a number of whole shares of Stock
equal to the vested Performance Shares (as defined in the Notice)
to be delivered on such Settlement Date, 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.
3.3 Application of
Section 409A. Notwithstanding any inconsistent provision
of this Agreement, to the extent the Company determines in good
faith that (a) the settlement of Performance Shares pursuant
to this Agreement in connection with the Participant’s
termination of Service would constitute deferred compensation
subject to the rules of Section 409A, and (b) that the
Participant is a “specified employee” under
Section 409A, then only to the extent required to avoid the
Participant’s incurrence of any additional tax or interest
under Section 409A of the Code, such settlement will be
delayed until the date which is six (6) months after the
Participant’s “separation from service” within
the meaning of Section 409A. The Company and the Participant
agree to negotiate in good faith to reform any provisions of this
Agreement to maintain the maximum extent practicable to the
original intent of the applicable provisions without violating the
provisions of Section 409A of the Code, if the Company deems
such reformation necessary or advisable pursuant to guidance under
Section 409A to avoid the incurrence of any such interest and
penalties. Such reformation shall not result in a reduction of the
aggregate benefits to the Participant under this
Agreement.
3.4 Tax 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. Upon the
request of Participant, the Company shall deduct from the shares of
Stock issuable to Participant at the settlement of this Award a
number of whole shares of Stock having a Fair Market Value, as
determined by the Company, equal to all or any part of the tax
withholding obligations of the Company. The Fair Market Value of
any shares of Stock withheld or tendered to satisfy any such tax
withholding obligations shall not exceed the amount determined by
the applicable minimum statutory withholding rates.
3.5 Certificate
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
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