exv10w58



 



EXHIBIT 10.58


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 26th
day of May 2003.


     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 

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in the election of directors, as the case may be, of the corporation resulting from such reorganization, merger
or consolidation.


     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

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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

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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 15(b) of this Agreement of
its intention to terminate the Executive’s employment. In such event, the



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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

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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 14(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 14(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 the Company for Cause
or by the Executive for Good Reason shall be communicated by “Notice of
Termination” to the other party hereto given in accordance with Section 15(b)
of this Agreement. For purposes of this



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Agreement, a “Notice of Termination”
means a written notice which (i) indicates the specific termination provision
in this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated and
(iii) if the Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date (which date shall be not
more than fifteen days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause, as the
case may be, shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive’s or the Company’s rights hereunder.


          (e)     Date of Termination. “Date of Termination” means the date of
receipt of the Notice of Termination or any later date specified therein, as
the case may be; provided, however, that (i) if the Executive’s employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (ii) if the Executive’s employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.



     6.      Obligations of the Company upon Termination


          (a)     Death. If the Executive’s employment is terminated by reason of
the Executive’s death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive’s legal representatives
under this Agreement, other than the following obligations: (i) payment of the
Executive’s Annual Base Salary through the Date of Termination to the extent
not theretofore paid, (ii) payment of the product of (x) the Annual Bonus and
any long-term incentive bonus paid, guaranteed to be paid, or payable but for
any deferral (and annualized for any fiscal year consisting of less than twelve
full months or for which the Executive has been employed for less than twelve
full months) to the Executive for the most recently completed fiscal year
during the Employment Period, and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of Termination, and
the denominator of which is 365, (iii) payment of any compensation previously
deferred by the Executive (together with any accrued interest thereon) and not
yet paid by the Company and any accrued vacation pay not yet paid by the
Company, (iv) payment of any earned or guaranteed Annual Bonus, long-term
incentive bonus or other incentive compensation payments
attributable to prior fiscal years to the extent not theretofore paid, and
(v) payment for any substantiated business and relocation expenses incurred by
the Executive to the extent not theretofore reimbursed (the amounts described
in clauses (i) through (v) above are hereafter referred to as “Accrued
Obligations”). All Accrued Obligations shall be paid to the Executive’s estate
or beneficiary, as applicable, at the option of the Company, either (x) in a
lump sum in cash within 30 days of the Date of Termination or (y) in twelve
equal consecutive monthly installments, with the first installment to be paid
within 30 days of the Date of Termination. Anything in this Agreement to the
contrary notwithstanding, the Executive’s family shall be entitled to receive
benefits at least equal to the most favorable benefits provided generally by
the Company and any of its affiliated companies to surviving families of peer
executives of the Company and such affiliated companies under such plans,
programs, practices and policies relating

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to family death benefits, if any, as
in effect generally with respect to other peer executives and their families at
any time during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive’s family as in effect
on the date of the Executive’s death generally with respect to other peer
executives of the Company and its affiliated companies and their families.


          (b)     Disability. If the Executive’s employment is terminated by reason
of the Executive’s Disability during the Employment Period, this Agreement
shall terminate without further obligations to the Executive, other than for
Accrued Obligations. All Accrued Obligations shall be paid to the Executive at
the option of the Company, either (x) in a lump sum in cash within 30 days of
the Date of Termination or (y) in twelve equal consecutive monthly
installments, with the first installment to be paid within 30 days of the Date
of Termination. Anything in this Agreement to the contrary notwithstanding,
the Executive shall be entitled after the Disability Effective Date to receive
disability and other benefits at least equal to the most favorable of those
provided by the Company and its affiliated companies to disabled peer
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally
with respect to other peer executives and their families at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Executive and/or the Executive’s family, as in effect at any time
thereafter through the Date of Termination generally with respect to other peer
executives of the Company and its affiliated companies and their families.



          (c)     Cause. If the Executive’s employment shall be terminated for Cause
during the Employment Period, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the Executive
the Annual Base Salary through the Date of Termination plus the amount of any
compensation previously deferred by the Executive, in each case to the extent
theretofore unpaid. If the Executive terminates employment during the
Employment Period, excluding a termination for Good Reason, this Agreement
shall terminate without further obligations to the Executive, other than for
Accrued Obligations. In such case, all Accrued Obligations shall be paid to the
Executive at the option of the Company, either (x) in a lump sum in cash within
30 days of the Date of Termination, or
(y) in twelve equal consecutive monthly installments, with the first
installment to be paid within 30 days of the Date of Termination.



          (d)     Good Reason or Termination Without Cause. If, during the Employment
Period, the Company shall terminate the Executive’s employment other than for
Cause or Disability, or the Executive shall terminate employment under this
Agreement for Good Reason:



               (i)     the Company shall pay to the Executive
the aggregate of the following amounts, such
amounts to be payable by the Company in a lump sum
in cash within 30 days of the Date of termination.



                    A.     All Accrued Obligations; and

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                    B.     2.0 times the sum of the Executive’s Annual Base Salary and the higher
of either (i) the average annualized (for any year with respect to which the
Executive has been employed by the Company for less than twelve full months)
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 years or lesser number of years during
which the Executive has been employed by the Company immediately preceding the
Effective Date, or (ii) the targeted annual bonus payable to the Executive
pursuant to the Company’s Incentive Compensation Plan for the fiscal year in
which the Date of Termination occurs (assuming 100% achievement of the Company
performance factor and 100% achievement of the Executive’s personal performance
factor); and



                    C.     any guaranteed or targeted Long Term Incentive Plan award that would
have been payable within two years of the Date of Termination; and



                    D.     An amount equal to that portion, if any, of the Company’s contribution
to the Executive’s 401(k), savings or other similar individual account plan
which is not vested as of the Date of Termination (the “Unvested Company
Contribution”), plus an amount which when added to the Unvested Company
Contribution would be sufficient after Federal, state and local income taxes
(based on the tax returns filed by the Executive most recently prior to the
Date of Termination) to enable the Executive to net an amount equal to the
Unvested Company Contribution; and



               (ii)     the Company shall pay the Executive up to $25,000 for executive
outplacement services utilized by the Executive upon the receipt by the Company
of written receipts or other appropriate documentation; and



               (iii)     for the remainder of the Employment Period, or such longer period as
any plan, program, practice or policy may provide, the Company shall continue
benefits at the Company’s expense to the Executive and, where applicable, the
Executive’s family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described
in Section 4(b)(iv) of this Agreement if the Executive’s employment had not
been terminated in accordance with the most favorable plans, practices,
programs or policies of the Company and its affiliated companies generally
applicable to other peer executives and their families 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 and their families;
provided, however, that if the Executive becomes employed elsewhere during the
Employment Period and is thereby afforded comparable insurance and welfare
benefits to those described in Section 4(b)(iv), the Company’s obligation to
continue providing the Executive with such benefits shall cease or be
correspondingly reduced, as the case may be. For purposes of determining
eligibility of the Executive for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to have
remained employed until the end of the Employment Period and to have retired on
the last day of such period; and

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               (iv)     All outstanding stock options and shares of restricted stock held by
the Executive pursuant to any Company stock option plan, stock option agreement
or restricted stock agreement shall immediately become vested and exercisable
as to all or any part of the shares covered thereby, with the Executive being
able to exercise his stock options within a period of eighteen months following
the Date of Termination or such longer period as may be permitted under
Executive’s stock option agreements; and



               (v)     The Company shall require the surviving, continuing, successor, or
purchasing corporation or parent corporation thereof, as the case may be (the
“Acquiring Corporation”), to either assume the Company’s rights and obligations
under any Company stock option plan, stock option agreement or restricted stock
agreement or substitute for outstanding
options or restricted shares substantially equivalent options or
restricted shares of the Acquiring Corporation’s stock. For this purpose, a
stock option or restricted share shall be deemed assumed if, following the
Change in Control, the stock option or restricted share confers the right to
receive in accordance with its terms and conditions, for each share of Company
stock subject to a stock option agreement or restricted stock agreement
immediately prior to the Change in Control, the consideration (whether stock,
cash or other securities or property) to which a holder of a share of Company
stock on the effective date of the Change in Control was entitled.



               (vi)     If, in the calendar year in which occurs the Date of Termination or
in the immediately preceding calendar year, the Executive had relocated the
Executive’s primary residence from one location (the “Point of Origin”) to its
location at the Date of Termination at the request of the Company, then any
relocation expenses that are actually incurred in the twelve-month period
immediately following the Date of Termination by the Executive in moving the
Executive’s primary residence and personal property to any location shall be
reimbursed by the Company, on a tax-neutral basis, to the extent such expenses
do not exceed the cost of relocating the Executive’s primary residence and
personal property to the Point of Origin, provided such expenses are
substantiated by means of written receipts. The cost of relocating the
Executive’s primary residence and personal property to the Point of Origin
shall be determined by averaging estimates obtained by the Company in writing
from three reputable moving companies, selected by the Company in good faith.
It shall be the obligation of the Executive to notify the Company in advance of
any such relocation so that such estimates may be obtained.



The amounts required to be paid under this Section 6(d) shall be reduced by any
other amount of severance (i.e., relating solely to salary or bonus
continuation or actual or deemed pension or insurance continuation) received by
the Executive upon such termination of employment under any severance plan,
policy or arrangement of the Company applicable to the Executive or a group of
employees of the Company, including the Executive, and applicable without
regard to the occurrence of a Change in Control prior to such termination of
employment. The amounts payable to the Executive pursuant to this Agreement
shall be determined without giving effect to any decrease in compensation or
benefits that is in violation of the terms of this Agreement. The amounts
payable to the Executive pursuant to this Agreement will not be subject to any
requirement of mitigation, nor, except as specifically set forth herein, will
they be offset or otherwise reduced by reason of the Executive’s receipt of
compensation from any source other than the Company.


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     7.          Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive’s continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices provided by the
Company or any of its affiliated companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any other agreements with the Company or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of the Company or any of its affiliated companies at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program except as explicitly modified by this Agreement.


     8.      Full Settlement. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder, except as provided in the last sentence of Section 6(d), shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or others. In
no event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement. The Company agrees to pay, to the
full extent permitted by law, all legal fees and expenses which the Executive
may reasonably incur, including the costs and expenses of any arbitration
proceeding, as a result of any contest (regardless of the outcome thereof) by
the Company or others of the validity or enforceability of, or liability under,
any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Executive about the amount of any
payment pursuant to this Agreement), plus in each case interest on any delayed
payment at the applicable Federal rate provided for in Section 7872(f)(2) of
the Internal Revenue Code of 1986, as amended (the “Code”); provided that the
Executive’s claim is not determined by a court of competent jurisdiction or an
arbitrator to be frivolous or otherwise entirely without merit.


     9.     Release. Upon fulfillment of the Company’s obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder, the parties shall enter into a mutual release that shall
include the provisions set forth in Exhibit D to the Employment Agreement and
such other terms that are agreed upon by the Company and the Executive at such
time.


     10.     Certain Additional Payments by the Company.


          (a)     Gross-Up
Payment Amount. Notwithstanding anything in this Agreement
to the contrary, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive, whether
paid, payable, distributed or distributable pursuant to this Agreement or
otherwise (a “Payment”) would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986 (the “Code”) (or any successor
provision) or any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest
and penalties, are collectively referred to in this Agreement as the
“Excise Tax”), then the Executive shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that after the payment by the
Executive of all taxes (including 


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any interest or penalties imposed with
respect to such taxes), including any Excise Tax, imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payment.


          (b)      Determinations.  Subject to the provisions of Section 10(c), all
determinations required to be made under this Section 10, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by an accounting firm of national standing reasonably selected by the Company
(the “Accounting Firm”), which shall provide detailed supporting calculations
to both the Company and the Executive within 15 business days of the receipt of
written notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 10, shall be paid by the Company to the
Executive within five days of the receipt of the Accounting Firm’s
determination. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. As a result of the possible
uncertainty in application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments will not have been made by the Company that should have been
made (“Underpayment”), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 10(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.



          (c)      IRS Claims. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect
to such claim is due). If the Company notifies the Executive in writing prior
to the expiration of such period that it desires to contest such claim, the
Executive shall:



               (i) give the Company any information reasonably requested by the Company
relating to such claim,



               (ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by an attorney
selected by the Company and reasonably acceptable to the Executive,




               (iii) cooperate with the Company in good faith in order effectively to
contest such claim, and

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               (iv) permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section, the Company shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at its sole option,
either direct the Executive to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Executive agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled in his sole
discretion to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.



          (d)     Refunds. If, after receipt by the Executive of an amount advanced by
the Company pursuant to Section 10(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company’s complying with the requirements of such Section) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after receipt by the
Executive of an amount advanced by the Company pursuant to Section 10(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.



     11.      Confidential Information.  The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies
and their respective businesses, which shall have been obtained by the
Executive during the Executive’s employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive’s employment with the
Company, the Executive shall not, without the prior written consent of the
Company, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In addition, to the
extent that the

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Executive is a party to any other agreement relating to
confidential information, inventions or similar matters with the Company, the
Executive shall continue to comply with the provisions of such agreements. In
no event shall an asserted violation of the provisions of this Section
constitute a basis for deferring or withholding any amounts otherwise payable
to the Executive under this Agreement.


     12.      Public Announcements. The Executive shall consult with the
Company before issuing any press release or otherwise making any public
statement regarding this Agreement or the transactions contemplated hereby, and
the Executive shall not issue any such press release or make any such public
statement without the prior written approval of the Company, except as may be
required by applicable law, rule or regulation or any self regulatory agency
requirements, in which event the Company shall have the right to review and
comment upon any such press release or public statement prior to its issuance.


     13.      Arbitration and Equitable Relief. 


     (a)     Except as provided in Section 13(d) below, Executive and the
Company agree that to the extent permitted by law, any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof will be settled by arbitration to be held at a location within 30 miles
of the Company’s principal executive offices in California, in accordance with
the National Rules for the Resolution of Employment Disputes then in effect of
the American Arbitration Association (the “Rules”). The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of
the arbitrator will be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator’s decision in any court
having jurisdiction.


     (b)     The arbitrator will apply California law to the merits of any
dispute or claim, without reference to rules of conflict of law. Executive
hereby expressly consents to the personal
jurisdiction of the state and federal courts located in California for any
action or proceeding arising from or relating to this Agreement and/or relating
to any arbitration in which the parties are participants.


     (c)     The Company will pay the direct costs and expenses of the
arbitration. The Company and Executive each will separately pay its counsel
fees and expenses; provided, however, the Company shall reimburse Executive for
his reasonable costs (including without limitation attorneys’ fees) incurred if
Executive succeeds on the merits with respect to a material breach of this
Agreement at any such arbitration, including enforcing any judgment entered on
an arbitrator’s decision.


     (d)     The Company may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary to enforce the provisions of the New Hire
Documents, without breach of this arbitration agreement and without abridgement
of the powers of the arbitrator.


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     (e)     EXECUTIVE HAS READ AND UNDERSTANDS SECTION 13, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO THE EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE CLAIMS ARISING OUT
OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING
ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THIS AGREEMENT.


     14.      Successors.


          (a)     This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive’s legal
representatives.



          (b)     This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.



          (c)     The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, “Company” shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.



     15.      Miscellaneous 


          (a)     This Agreement shall be governed by and construed in accordance
with the laws of the Sate of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.

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          (b)     All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:




	 	 	 
	 	 	
 If to the Executive:
	 	 	 
	 	 	
Gregory T. Lucier

1022 Fieldstone Lane

Oconomowoc, Wisconsin 53066
	 	 	 
	 	 	
If to the Company:
	 	 	 
	 	 	
Invitrogen Corporation

1600 Faraday Avenue

Carlsbad, CA 92008

(ATTN: General Counsel)



or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.


          (c)     The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.



          (d)     The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.



          (e)     The Executive’s or the Company’s failure to insist upon strict
compliance with any provision hereof in any particular instance shall not be
deemed to be a waiver of such provision or any other provision thereof.



IN WITNESS WHEREOF, the Executive has hereunto set his or her hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first written above.



	 	 	 	 	 
	 	 	INVITROGEN CORPORATION
	 	 	 	 	 
	  /s/ Gregory T. Lucier


Gregory T. Lucier	 	
By:
	 	  /s/ C. Eric Winzer


C. Eric Winzer

Chief Financial Officer



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