Employment Agreement - Hixson

Change in Control

 

 

EX-10.53 5 dex1053.htm AGREEMENT DATED MARCH 13, 2010

Exhibit 10.53

This Employment Agreement (this “Agreement”) is entered into between Sequenom, Inc. a Delaware corporation (the “Company”) and Harry F. Hixson, Jr. Ph.D. (“Employee”), on March, 13, 2010. In consideration of, and as a condition of Employee’s employment by the Company, and of the compensation to be paid to Employee by the Company, and in recognition of the fact that Employee will have access to the Company’s confidential, proprietary, and trade secret information, the Company and Employee agrees to the terms and conditions set forth in this Agreement as follows:

1. Employment. Director.

1.1 Employment. Effective as of September 28, 2009, Employee will be employed by the Company as its Chief Executive Officer. Employee agrees that Employee’s employment with the Company is on an at-will basis, is for no specified term and may be terminated by the Company at any time, with or without Cause, and with or without notice. Employee may terminate employment with the Company at any time for any reason upon written notice as provided in Section 9 of this Agreement. Employee understands and agrees that the nature of Employee’s employment relationship with the Company cannot be changed or modified except by a written agreement signed by the Lead Director of the Board of Directors of the Company (the “Board”).

1.2 Director. This Agreement is intended only to cover the terms and conditions of Employee’s employment with the Company. The extent and terms of Employee’s service as a member and Chairman of the Board of Directors are not affected by this Agreement.

1.3 Duties of Employee. Employee shall report to the Board. Employee shall have overall responsibility for the management, direction, and operations of the Company. Employee shall perform such other duties and have such other responsibilities as may be assigned to Employee from time to time by the Board.

2. Loyalty. As long as Employee is employed by the Company, Employee shall devote full time and efforts to the Company and shall not, without the Company’s prior express written consent, engage directly or indirectly in any employment, consulting or business activity other than for the Company. Notwithstanding the foregoing, the Company agrees that Employee may continue to provide services as an employee of BrainCells Inc. through December 31, 2010, as a member of the board of directors of Arena Pharmaceuticals, Infinity Pharmaceuticals, NovaBay Pharmaceuticals, and BrainCells Inc., and as a member of the San Diego Opera Board of Directors and the Board of Directors of the San Diego-Imperial Council, Boy Scouts of America; provided that such outside services do not in Sequenom’s judgment interfere with Employee’s obligation to provide full time service to Sequenom as an executive and director. Employee may not accept any additional director, employment, consultant or other outside service, or any extension of any existing service, without seeking and obtaining approval from the Compensation Committee after providing the chair with all material information regarding the proposed new or extended service. Employee will refer to the Company all genetic analysis and molecular diagnostic corporate opportunities Employee learns of as a result of service as an employee of the Company.


3. Compensation and Benefits.

3.1 Salary. Employee’s annual base salary shall be $475,000, less standard deductions and withholdings, payable in accordance with the Company’s standard payroll policy. Such base salary may be increased, subject to approval by the Compensation Committee of the Board.

3.2 Bonus. Employee shall be eligible for an annual performance bonus of up to 50% of Employee’s applicable annual base salary (the “Target Bonus”), less standard deductions and withholdings. The amount of the bonus, if any, will be determined by the Company’s and Employee’s performance against specific measurable corporate and personal goals established annually by the Compensation Committee of the Board. The Target Bonus shall be paid during the first quarter of the calendar year that follows the calendar year for which it was earned. For 2009, Employee shall receive a pro-rated annual bonus of $59,375 provided he is serving as Chief Executive as of December 31, 2009.

3.3 Stock Options. On October 21, 2009, the Company granted to Employee two stock options to purchase an aggregate of 375,000 shares of the common stock of the Company, $0.001 par value per share (the “Common Stock”). The exercise price for both stock options was equal to the fair market value of the Common Stock on October 21, 2009, as determined by the Board. Both stock options have a 10 year term and become exercisable or “vest” in 12 equal monthly installments, in the case of the first option to purchase 187,500 shares of Common Stock, commencing on September 28, 2009 and for so long as Employee continues to provide services to the Company as an employee, director or consultant and, in the case of the second option to purchase 187,500 shares of Common Stock, commencing on September 28, 2010 and for so long as Employee serves as Chief Executive Officer. Employee will be permitted to exercise both stock options for up to one year following termination of his employment or services by the Company (but in any event no later than the end of the maximum permitted term of the options). The other terms and conditions of the stock options are as set forth in the individual stock option agreements, which shall be the Company’s standard form of option agreement and consistent with its 2006 Equity Incentive Plan (the “Equity Incentive Plan”).

3.4 Contingent Stock Option. On or as soon as practicable after September 28, 2010, the Company shall grant to Employee pursuant to the Equity Incentive Plan an additional stock option to purchase that number of shares of Common Stock equal to the difference between 187,500 and the number determined by multiplying the fully diluted shares of the Company outstanding on the grant date by the percentage that 187,500 shares represented of the fully diluted shares of the Company outstanding on October 21, 2009. Such additional stock option, if granted, shall have an exercise price equal to the fair market value of the Common Stock on the grant date, as determined by the Board. Such additional stock option, if granted, shall have a 10 year term and shall be fully vested on the grant date. In addition, Employee will be permitted to exercise such stock option for up to one year following termination of his employment or services by the Company (but in any event no later than the end of the maximum permitted term of the option). The other terms and conditions of the stock option shall be governed by the Equity Incentive Plan and the individual stock option agreement.

3.5 Restricted Stock Award. Employee was granted restricted stock units (“RSUs”) covering 225,000 shares of Common Stock, which shall vest upon the achievement of specific performance-based milestones established by the Board, consistent with those established for other employees of the Company. The RSUs shall continue to vest for so long as Employee continues to provide services to the Company as an employee, director or consultant. The other terms and conditions of such RSUs shall be governed by the Equity Incentive Plan and the individual restricted stock unit agreement or such other documentation as shall be approved and adopted by the Board to evidence such RSUs.


3.6 Change in Control Plan. Employee shall be an eligible “Participant” in the Company’s Change in Control Severance Benefit Plan (the “Change in Control Plan”).

3.7. Other Benefits. Employee shall be entitled to participate in such employee benefit plans and to receive such other fringe benefits as are customarily afforded the Company’s employees and executives. Employee understands that, except when prohibited by applicable law, the Company’s employee benefit plans and fringe benefits, including the Equity Incentive Plan, may be amended, enlarged, diminished or terminated by the Company from time to time, in its sole discretion.

3.8 Expense Reimbursement. Upon submission of itemized expense statements in the manner specified by the Company, the Company will pay Employee’s reasonable travel and other reasonable business expenses incurred by Employee in the furtherance of and in connection with Employee’s employment hereunder, provided that Employee submits receipts or other documentation for such expenses no later than ninety (90) days after incurring such expenses. The Company shall reimburse all such eligible expenses promptly, but in no event later than ninety (90) after receiving such documentation.

4. Employee’s Performance.

4.1 Rules, Procedures and Standards. Employee shall use best efforts to perform assigned duties diligently, loyally, conscientiously, and with reasonable skill, and shall comply with all rules, procedures and standards promulgated from time to time by the Company. Among such rules, procedures and standards are those governing ethical and other professional standards for dealing with customers, government agencies, vendors, competitors, consultants, fellow employees, and the public-at-large; security provisions designed to protect the Company’s property and the personal security of the Company’s employees; rules respecting attendance, punctuality, and hours of work; and, rules and procedures designed to protect the confidentiality of the Company’s proprietary and trade secret information. The Company agrees to make reasonable efforts to inform Employee of such rules, standards and procedures as are in effect from time to time.

4.2 Employee Handbook. The employment relationship between the Company and Employee shall be governed by the policies and practices established by the Company and the Board. Employee will acknowledge in writing that he has read the Company’s Employee Handbook, which will govern the terms and conditions of his employment with the Company, along with this Agreement. In the event that the terms of this Agreement differ from or are in conflict with the Company’s policies or practices or the Company’s Employee Handbook, this Agreement shall control.

4.3 Additional Representations. Employee hereby represents and warrants that (i) Employee has the full right to enter into this Agreement and perform the services required of hereunder, without any restriction whatsoever, and (ii) in the course of performing services hereunder, Employee will not violate the terms or conditions of any agreement between Employee and any third party. It is the understanding of both the Company and Employee that Employee shall not divulge to the Company or any of its subsidiaries any confidential information or trade secrets belonging to others, including Employee’s former employers, nor shall the Company or any of its affiliates seek to elicit from Employee any such information. Consistent with the foregoing, Employee shall not provide to the Company or any of its affiliates, and the Company and its affiliates shall not request, any documents or copies of documents containing such information.


5. The Company’s Management Rights. The Company retains its full management prerogatives and discretion to manage and direct its business affairs, including the adoption, amendment or modification of research, development, production or marketing decisions as it sees fit, notwithstanding any individual interest in, or expectation, Employee may have regarding a particular business program or product.

6. Nondisclosure of Confidential, Proprietary or Trade Secret Information. As a condition of continued employment, Employee agrees to continue to abide by the Proprietary Information and Inventions Agreement previously entered into in conjunction with the Prior Agreement (the “Inventions Agreement”). The termination of employment shall not release Employee from Employee’s obligations under the Inventions Agreement or as established by applicable laws or the Company’s policies.

7. No Solicitation of Customers or Employees. Employee acknowledges that the Company has invested substantial time, effort and expense in compiling its confidential, proprietary and trade secret information and in assembling its present staff of personnel. In order to protect the business value of the Company’s confidential, proprietary and trade secret information, during Employee’s employment with the Company and for one year immediately following the termination of that employment with the Company:

(a) Employee agrees that information regarding all customers and all prospective customers of the Company, including information about customer personnel, technical needs and preferences, financial matters and future plans, of which Employee learns during Employee’s employment with the Company, may constitute “Proprietary Information” of the Company as defined in the Inventions Agreement.

(b) Employee agrees not to, directly or indirectly, induce or solicit any of the Company’s employees to leave their employment with the Company.

8. Return of Property. Upon the termination of Employee’s employment with the Company or at any other time upon request of the Company, Employee shall promptly return any and all customer or prospective customer lists, other customer or prospective customer information or related materials, formulas, computer data and programs, specifications, drawings, blueprints, data storage devices, reproductions, sketches, notes, memoranda, reports, records, proposals, business plans, or copies of them, other documents, materials, tools, equipment, and all other property belonging to the Company or its customers which Employee then possesses. Employee further agrees, that upon termination of his employment, Employee shall not take any documents or data of any description containing or pertaining to the Company’s Proprietary Information or Inventions, as those terms are defined in the Inventions Agreement. Upon leaving the Company’s employment, Employee agrees to sign a Termination Certificate confirming that Employee has complied with the requirements of this Section 8 and that Employee is aware that certain restrictions imposed by this Agreement continue after termination of Employee’s employment. Employee further understands that Employee’s continuing obligations under the Inventions Agreement will continue even if Employee does not sign a Termination Certificate.

9. Termination. Employment under this agreement is terminable at the will of the Board, with or without cause or notice, or by Employee upon giving the Board four weeks advanced notice of his resignation of employment.


10. Payment after Termination.

10.1 Effect of Termination. Following termination of Employee’s employment, all payments and benefits provided to Employee under this Agreement shall cease as of the date of such termination, except as otherwise provided herein.

10.2 Payment upon Termination. In the event Employee’s employment is terminated by the Company or by Employee pursuant to Section 9, Employee shall receive the following payments and rights upon termination:

(a) Accrued but unpaid salary;

(b) Accrued but unused vacation pay;

(c) If Employee elects continued coverage under COBRA, Company will pay Employee’s health insurance premiums for Employee and Employee’s family for a period of 90 days from the effective date of Employee’s termination of employment with the Company, to the same extent the Company paid those premiums at the time of termination.

(d) A proration of any Target Bonus determined by the Company to be appropriate for Employee after completion of the entire Target Bonus year, prorated in the discretion of the company taking into account the period of Employee’s service during the computation period and the contributions made by the Employee to achieving Target Bonus objectives.

10.3. Relationship to Other Agreements. Unless modified herein, any rights Employee has under the Company’s Amended and Restated Change in Control Severance Benefit Plan or Equity Incentive Plan are not affected by this Agreement.

10.4. Consulting After Termination. In the event Employee continues to be a member of the Company’s Board of Directors after the time Employee’s employment as Chief Executive Officer is terminated by the Company or by Employee pursuant to Section 9, and the Company shall have need for consultation and services from Employee during a transition period beyond the normal duties of a member of the Board of Directors, Company and Employee may agree to a contract for continued service by Employee as a consultant to the Company to perform such services, at a per diem rate equal to a proration of employee’s last salary with the Company. The amount and duration of the requested consulting services rests in the sole discretion of the Company.

11. Arbitration. The Company and Employee agree that any controversy or claim arising out of or relating to this Agreement or the Company’s employment of Employee (including, but not limited to claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, the California Labor Code, the California Constitution or any other federal, state or local statutes or common law) or any dispute arising out of the interpretation or application of this Agreement that the Company and Employee are unable to resolve shall be finally resolved and settled exclusively by arbitration in San Diego, California by a single arbitrator who is mutually selected by the Company and Employee. If the Company and Employee cannot agree upon an arbitrator, then each party shall choose its own independent representative and those independent representatives shall in turn choose the single arbitrator within 30 days of the date of the selection of the first independent representative.


12. Miscellaneous.

12.1 Entire Agreement. This Agreement together with the Inventions Agreement and the Employee Handbook represent the Company’s and Employee’s entire understanding with respect to the subject matter contained herein and therein and supersedes the Prior Agreement and all other previous understandings, written or oral between the Company and Employee concerning the subject matters of this Agreement, the Inventions Agreement and the Employee Handbook. This Agreement may be amended or modified only with the signed written consent of both the Company and Employee. No oral waiver, amendment or modification shall be effective under any circumstances whatsoever.

12.2 Survival. The Inventions Agreement and Sections 7, 8, 9, 11, 12, 13 and 14 of this Agreement shall remain in effect after the termination of Employee’s employment by the Company, regardless of the reason the employment relationship ends.

12.3 Assignment and Binding Effect. This Agreement shall be binding upon and inure to the benefit of Employee and Employee’s heirs, executors, personal representatives, assigns, administrators and legal representatives. Because of the unique and personal nature of Employee’s duties under this Agreement, neither this Agreement nor any rights or obligations under this Agreement shall be assignable by Employee. This Agreement shall be binding upon and inure to the benefit of the Company and its successors, assigns and legal representatives.

12.4 Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

12.5 Injunctive Relief. Employee recognizes that money damages alone would not adequately compensate the Company in event of any breach by Employee of Section 6, 7 or 8 or any provision of the Inventions Agreement. Therefore, Employee agrees that, in addition to all other remedies available to the Company at law, in equity, or otherwise, the Company shall be entitled to seek injunctive relief to restrain any breach of said Sections and to enforce the provisions hereof, without showing or proving any actual damage to the Company or posting any bond.

12.6 Non-Waiver. No failure by either party to insist upon strict compliance with any of the terms, covenants, or conditions hereof, and no delay or omission by either party in exercising any right under this Agreement, will operate as a waiver of such terms, covenants, conditions or rights. A waiver or consent given by a party on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.

12.7 Governing Law. Venue. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California. The parties agree that the venue for any dispute under this Agreement will be San Diego California, whether in a court of law or before an arbitrator, as provided herein. The Company and Employee severally recognize and consent to the jurisdiction over each of them by the courts of the state of California.


12.8 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notices to Employee shall be sent to the last known address in the Company’s records or such other address as Employee may specify in writing. Notices to the Company shall be sent to the Company’s Chief Financial Officer or to such other representative of the Company as the Company may specify in writing.

12.9 Advertising Waiver. Employee agrees to permit the Company and its affiliates, and persons or other organizations authorized by the Company or any of its affiliates, to use, publish and distribute advertising or sales promotional literature concerning the products or services of the Company or any of its affiliates, or the machinery and equipment used in the provision thereof, in which Employee’s name or pictures of Employee taken in the course of Employee’s provision of services to the Company or any of its affiliates, appear. Employee hereby waives and releases any claim or right Employee may otherwise have arising out of such use, publication or distribution.

12.10 Attorneys’ Fees. The Company agrees to reimburse Employee for up to $8,000 in attorneys’ fees incurred by Employee regarding preparation of this Agreement.

BY PLACING THEIR SIGNATURES HEREUNDER, EMPLOYEE AND THE COMPANY ACKNOWLEDGE THAT THEY HAVE READ ALL THE PROVISIONS OF THIS AGREEMENT AND THAT THEY AGREE TO ALL OF ITS TERMS.

 

 

 

EMPLOYEE:

Date: March 13, 2010

 

 

 

 

 

/s/ Harry F. Hixson, Jr.,

 

 

Harry F. Hixson, Jr. Ph.D.

 

Date: March 13, 2010

 

 

SEQUENOM, INC.

 

 

By:

 

/s/ Richard A. Lerner, M.D.

 

 

 

Richard A. Lerner, M.D.

 

 

 

Lead Director of the Board of Directors

 

 

 

EX-10.52 4 dex1052.htm AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE BENEFIT PLAN

EXHIBIT 10.52

 

SEQUENOM, INC.

 

AMENDED AND RESTATED

CHANGE IN CONTROL SEVERANCE BENEFIT PLAN

 

Section 1. INTRODUCTION.

 

The Sequenom, Inc. Amended and Restated Change in Control Severance Benefit Plan (the “Plan”) was originally established effective October 11, 2007 (the “Adoption Date”) and is hereby amended and restated in its entirety effective as of February 9, 2009. The purpose of the Plan is to provide severance benefits to certain eligible employees of the Company and its Affiliates upon selected terminations of service in connection with a Change in Control (as defined below).

 

This Plan shall continue to supersede the Change in Control Severance Benefit Plan established effective April 28, 2005 and any generally applicable change in control severance plan, policy, or practice, whether written or unwritten, with respect to each employee who becomes a Participant in the Plan. For the purposes of the foregoing sentence, a “generally applicable change in control severance plan, policy or practice” is a plan, policy or practice in which benefits are not conditioned upon (i) being expressly designated a participant, (ii) receiving an award such as a stock option, or (iii) the employee expressly electing to participate. In consideration for the benefits set forth in this Plan, this Plan shall also supersede and replace the change in control severance benefits in any individually negotiated employment contract or agreement, or any written plans that are not of general application, and, except as set forth in the Participation Notice (as defined below), each Participant’s change in control severance benefits shall be governed solely by the terms of this Plan.

 

This Plan document is also the Summary Plan Description for the Plan.

 

Section 2. DEFINITIONS.

 

The following shall be defined terms for purposes of the Plan:

 

(a)Affiliate” means a Parent Corporation or a Subsidiary Corporation.

 

(b)Base Salary” means a Participant’s monthly base salary in effect immediately prior to the Covered Termination and prior to any reduction in base salary that would permit such Participant to voluntarily terminate employment for Good Reason (as defined below) (including without limitation any compensation that is deferred by Participant into a Company-sponsored retirement or deferred compensation plan, exclusive of any employer matching contributions by the Company associated with any such retirement or deferred compensation plan and exclusive of any other Company contributions) and excludes all bonuses, commissions, expatriate premiums, fringe benefits (including without limitation car allowances), option grants, equity awards, employee benefits and other similar items of compensation.

 

(c)Board” means the Board of Directors of the Company.

 

1.


(d)Cash Severance Benefits Period” means 24 months for a Tier I Participant and 12 months for all other Participants.

 

(e)Cash Severance Benefits Reduction Period” means the 19th through the 24th month following the Covered Termination of a Tier I Participant.

 

(f)Cause” means, with respect to a Participant, the occurrence of one or more of the following:

 

(1) Such Participant’s conviction of, or plea of guilty or no contest with respect to, (i) any crime involving fraud, dishonesty or moral turpitude, or (ii) any felony under the laws of the United States or any state thereof;

 

(2) Such Participant’s commission of, or attempted commission of, or participation in, a fraud or act of dishonesty against the Company that results in (or might reasonably result in) material harm to the Company;

 

(3) Such Participant’s intentional and material violation of any statutory duty owed to the Company;

 

(4) Such Participant’s unauthorized use or disclosure of the Company’s material confidential information, material trade secrets or material proprietary information;

 

(5) Such Participant’s intentional and material violation of a written policy or rule of the Company or intentional violation of a fiduciary duty to the Company; or

 

(6) Any other definition of “Cause” (or a similar term) set forth in such Participant’s written agreement governing his or her employment by the Company or the termination of such employment that, if met, would allow the Company to terminate such Participant’s employment without the obligation to provide Participant with specified severance benefits or payments.

 

(g)Change in Control” means the occurrence of any of the following events prior to the automatic termination of this Plan as provided in Section 6(b):

 

(1) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity’s securities outstanding immediately after such merger, consolidation or other reorganization is not owned by persons who were stockholders of the Company immediately prior to such merger, consolidation or other reorganization, in substantially the same relative proportions as their ownership of the combined voting power of the Company immediately prior to such merger, consolidation or other reorganization;

 

(2) There is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company to an

 

2.


entity, more than 50% of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition;

 

(3) When a majority of the incumbent directors on the Board are replaced by new directors within any 18-month period; provided, however, that each director (i) whose election has been approved by a vote of at least a majority of the directors who were either incumbent directors at the beginning of the period or elected or nominated in accordance with clause (i) or (ii) of this Section 2(f)(3) during such period or (ii) whose nomination for election by the Company’s stockholders has been approved by a committee of the Board, a majority of whose members are directors who were either incumbent directors at the beginning of the period or elected or nominated in accordance with clause (i) or (ii) of this Section 2(f)(3) during such period shall be deemed to be an “incumbent director” and not a “new director” for purposes of this Section 2(f)(3); or

 

(4) Any “person” that (as such term is used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) by the acquisition or aggregation of securities is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote at elections of directors (the “Base Capital Stock”); except that any change in the relative beneficial ownership of the Company’s securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such person’s ownership of securities, shall be disregarded until such person increases in any manner, directly or indirectly, such person’s beneficial ownership of any securities of the Company.

 

The term “Change in Control” shall not include a transaction, the sole purpose of which is to change the state of the Company’s incorporation.

 

(h)Company” means Sequenom, Inc. or, following a Change in Control, the surviving entity resulting from such transaction or the parent company of such surviving entity.

 

(i)Compensation Committee” means the Compensation Committee of the Board.

 

(j)Covered Termination” means, with respect to a Participant who immediately prior to a termination of employment was an employee of the Company, such Participant’s termination of employment by the Company without Cause or a voluntary resignation of employment by the Participant for Good Reason; either of which occurring within the one-month period ending on the date of a Change in Control or 11-month period following a Change in Control.

 

(k)Good Reason” means, with respect to a Participant, the occurrence of one or more of the following events, if applicable, without such Participant’s express written consent:

 

3.


(1) A material reduction in such Participant’s authority, duties or responsibilities (and not simply a change in title or reporting relationships;

 

(2) A material reduction by the Company in such Participant’s Base Salary;

 

(3) A material adverse change by the Company to Participant’s Target Bonus or to the criteria, milestones or objectives related to such Participant’s Target Bonus that is reasonably likely to result in the Participant earning materially less than his or her Target Bonus during the subsequent applicable period;

 

(4) A material relocation of the Participant’s principal place of work to a location that would increase the Participant’s one-way commute from his or her personal residence to the new principal place of work by more than 20 miles.

 

Notwithstanding the foregoing, a Participant shall have “Good Reason” for his or her resignation only if: (a) the Participant notifies the Company in writing, within 30 days after the occurrence of one of the foregoing events specifying the event(s) constituting Good Reason, that he or she intends to terminate his or her employment no earlier than 30 days after providing such notice; (b) the Company does not cure such condition within 30 days following its receipt of such notice or states unequivocally in writing that it does not intend to attempt to cure such condition; and (c) the Participant resigns from employment within 30 days following the end of the period within which the Company was entitled to remedy the condition constituting Good Reason but failed to do so.

 

(l)Health Severance Benefits Period” means 18 months for a Tier I Participant and 12 months for all other Participants.

 

(m)Parent Corporation” means any corporation (other than the Company) in an unbroken ownership chain of corporations ending with the Company, provided each corporation in the unbroken ownership chain (other than the Company) owns, at the time of the determination, stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such ownership chain.

 

(n)Participant” means an individual who (i) is employed by the Company or its Affiliates, (ii) has been designated eligible to participate in the Plan by the Plan Administrator in its sole discretion (either by a specific designation or by virtue of being a member of a class of employees who have been so designated) and (iii) who has received a Participation Notice from the Company and elected to participate in the Plan by executing and returning such Participation Notice to the Company within the time period set forth therein. The Participation Notice shall designate the Participant as either a “Tier I Participant”, “Tier II Participant” or “Tier III Participant”; provided that, in the absence of such specific designation, the Participant shall be deemed a Tier III Participant for purposes of the Plan. The determination of whether an employee is eligible to be a Participant and the designation of either a Tier I Participant, Tier II Participant or Tier III Participant, shall be made by the Plan Administrator, in its sole discretion, and such determination shall be binding and conclusive on all persons.

 

4.


(o)Participation Notice” means the latest notice delivered by the Company to a Participant substantially in the form of Exhibit A hereto or such other form as may be approved by the Plan Administrator.

 

(p)Payment Commencement Date” means, with respect to a Participant, (i) if such Covered Termination occurs prior to the applicable Change in Control, the later of (A) such Change in Control or (B) the effective date of the Release (as defined below) or (ii) if such Covered Termination occurs on or after the applicable Change in Control, the later of (X) the date of such Covered Termination or (Y) the effective date of the Release.

 

(q)Plan Administrator” means the Compensation Committee.

 

(r)Qualified Plan” means a plan sponsored by the Company or an Affiliate that is intended to be qualified under Section 401(a) of the Internal Revenue Code.

 

(s)Subsidiary Corporation” means any corporation (other than the Company) in an unbroken ownership chain of corporations beginning with the Company, provided each corporation (other than the last corporation) in the unbroken ownership chain owns, at the time of the determination, stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such ownership chain.

 

(t)Target Bonus” means the target bonus (i.e., the annual bonus amount payable to a Participant in cash, common stock or other property if exactly 100% of all performance goals are achieved) most recently approved by the Compensation Committee or the Board for such Participant prior to the earlier of (i) the Payment Commencement Date and (ii) any reduction in Target Bonus that would permit such Participant to voluntarily terminate employment for Good Reason.

 

(u)Vesting Acceleration Benefit” means (i) the remainder of all vesting installments, whether time-based or performance-based, for a Tier I Participant, (ii) the remainder of all time-based vesting installments following the Covered Termination for a Tier II Participant and (iii) the next 24 monthly time-based vesting installments following the Covered Termination for a Tier III Participant.

 

The following additional terms are defined in the Section identified below:

 

TERM


  

SECTION


 

Adoption Date”

  

1

 

COBRA”

  

4

(a)(3)

Code”

  

4

(d)

ERISA”

  

9

 

Excise Tax”

  

5

(d)

Payment”

  

5

(d)

Plan”

  

1

 

 

5.


TERM


  

SECTION


 

Plan Sponsor”

  

12

(d)

Reduced Amount”

  

5

(d)

Release”

  

3

 

 

Section 3. ELIGIBILITY FOR BENEFITS.

 

Subject to the requirements set forth in this Section, the Company shall provide change in control severance benefits under the Plan to the Participants. In order to be eligible to receive benefits under the Plan, a Participant must (i) experience a Covered Termination and (ii) execute a general waiver and release (the “Release”) in substantially the form attached hereto as Exhibit B, Exhibit C, or Exhibit D, as appropriate (or as then may be required by law to effect a release of claims), and such Release must become effective in accordance with its terms; provided, however, that no such Release shall require the Participant to forego any unpaid salary, any accrued but unpaid vacation pay or any benefits payable pursuant to this Plan. With respect to any outstanding option held by the Participant, no provision set forth in this Plan granting the Participant additional rights to exercise the option can be exercised unless and until the Release becomes effective.

 

The Participant must execute the Release within the time period set forth therein, but in no event later than (x) if a Change in Control shall have occurred prior to such Covered Termination, 45 days following termination of employment or (y) if a Change in Control shall not have occurred prior to such Covered Termination, the later of (A) 45 days following termination of employment or (B) ten days following such Change in Control, and such release must become effective in accordance with its terms.

 

Unless a Change in Control has occurred, the Plan Administrator, in its sole discretion, may modify the form of the required Release to comply with applicable law and shall determine the form of the required Release, which may be incorporated into a termination agreement or other agreement with the Participant; provided, that, after a Change in Control occurs, the Plan Administrator may modify the form of required Release only if necessary to comply with applicable law.

 

Section 4. AMOUNT OF BENEFIT.

 

(a) Subject to the limitations and reductions provided in this Plan, benefits under this Plan, if any, shall be provided to the Participants described in Section 3 in the following amounts. Effective commencing with the Payment Commencement Date, such Participant shall receive the following severance package:

 

(1) Cash Severance Benefits. At the end of each month during the Cash Severance Benefit Period, which shall commence with the first full month following the Payment Commencement Date, the Participant shall receive a payment in an amount equal to the Participant’s Base Salary.

 

6.


(2) Bonus Severance Benefits. The Company shall make a cash severance payment to the Participant in an amount equal to a percentage of such Participant’s Target Bonus as set forth in the following table:

 

Tier


  

Percentage of
Target Bonus


I

  

150%

II

  

100%

III

  

0%

 

Any such bonus payment pursuant to this Section 4(a)(2) shall be in a single lump sum to be paid within 10 days following the Payment Commencement Date.

 

(3) COBRA Benefits. If such Participant timely elects to continue coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), then during the Health Severance Benefits Period, the Company will (i) pay all premiums for group medical, dental and vision coverage elected by such Participant for the Participant and his or her eligible dependents under (A) COBRA and, to the extent applicable, any similar applicable state statute, and (B) to the extent that such coverage under COBRA and any such applicable state statute has been exhausted or is no longer available, then under any individual policy providing group medical, dental and vision benefits substantially similar to those provided to Participant immediately prior to his or her termination of Service, and (ii) if Participant is eligible for benefits under the Exec-U-Care plan, reimburse all other out-of-pocket costs associated with Participant’s participation in such plan. In addition, if Participant does not timely elect to continue coverage group medical, dental or vision coverage under COBRA, then the Company will pay Participant in a lump sum the equivalent cash value of the COBRA payments that otherwise would have been made pursuant to this Section 4(a)(3). Such payment shall be made within 30 days following the expiration date of the COBRA election period. For purposes of this Section 4(a)(3), references to COBRA premiums shall not include any amounts payable by the Participant under an Internal Revenue Code Section 125 health care reimbursement plan. Notwithstanding the foregoing, no such premium payments (or any other payments for health, dental, or vision coverage by the Company) shall be made following the Participant’s death or the effective date of the Participant’s coverage by a health, dental, or vision insurance plan of a subsequent employer.

 

(4) Equity Award Acceleration. The vesting and exercisability of all outstanding options to purchase the Company’s common stock issued pursuant to any equity incentive plan of the Company or any Affiliate that are then held by the Participant on such date shall be accelerated to the extent applicable so that the Participant shall receive the Vesting Acceleration Benefit, any reacquisition or repurchase rights held by the Company in respect of common stock issued pursuant to any other stock award granted to the Participant by the Company shall lapse so that the Participant shall receive the Vesting Acceleration Benefit, and the vesting of any other stock awards granted to the Participant by the Company, and any issuance of shares triggered by the vesting of such stock awards, shall be accelerated so that the

 

7.


Participant shall receive the Vesting Acceleration Benefit. If the Covered Termination occurs prior to the applicable Change in Control, such vesting acceleration shall be deemed effective as of the date of the Covered Termination. Notwithstanding the foregoing, this Section 4(a)(4) shall not apply to stock awards issued under or held in any Qualified Plan. Notwithstanding the provisions of this Section 4(a)(4), in the event that the provisions of this Section 4(a)(4) regarding acceleration of vesting of an option would adversely affect a Participant’s option (including, without limitation, its status as an incentive stock option under Section 422 of the Code) that is outstanding on the date the Participant commences participation in the Plan, such acceleration of vesting shall be deemed null and void as to such option unless the affected Participant consents in writing to such acceleration of vesting as to such option at the time he or she becomes a Participant.

 

(b) Certain Reductions. Notwithstanding any other provision of the Plan to the contrary, any benefits payable to a Participant under Sections 4(a)(1) and 4(a)(2) of this Plan shall not be reduced by any severance benefits payable by the Company or an affiliate of the Company to such Participant under any contract or agreement (including an employment agreement) between such Participant and the Company, covering such Participant; provided, however, that this Plan shall supersede and replace the change in control severance benefits in any individually negotiated employment contract or agreement, or any written plans, and, except as set forth in the Participation Notice, each Participant’s change in control severance benefits shall be governed by the terms of this Plan.

 

(c) Mitigation. If, during a Tier I Participant’s Cash Severance Benefits Period, such Tier I Participant begins full-time employment with another employer, then (i) the amount payable by the Company to the Tier I Participant pursuant to Section 4(a)(1) above during the Cash Severance Benefits Reduction Period shall be reduced by the amount of any compensation paid to (or payable to) the Participant from such other employer during the Cash Severance Benefits Period (but in any case such amount payable by the Company during the Cash Severance Benefits Reduction Period shall not be reduced below zero).

 

(d) Application of Section 409A. Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under this Plan (the “Severance Benefits”) that constitute “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”) shall not commence in connection with Participant’s termination of employment unless and until Participant has also incurred a “separation from service” (as such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company reasonably determines that such amounts may be provided to Participant without causing Participant to incur the additional 20% tax under Section 409A.

 

It is intended that each installment of the Severance Benefits payments provided for in this Plan is a separate “payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended that payments of the Severance Benefits set forth in this Plan satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if the Company (or, if applicable, the successor entity thereto) determines that

 

8.


the Severance Benefits constitute “deferred compensation” under Section 409A and Participant is, on the termination of Participant’s service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the Severance Benefit payments shall be delayed until the earlier to occur of: (i) the date that is six months and one day after Participant’s Separation From Service”) or (ii) the date of Participant’s death (such applicable date, the “Specified Employee Initial Payment Date”), the Company (or the successor entity thereto, as applicable) shall (A) pay to Participant a lump sum amount equal to the sum of the Severance Benefit payments that Participant would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the Severance Benefits had not been so delayed pursuant to this Section and (B) commence paying the balance of the Severance Benefits in accordance with the applicable payment schedules set forth in this Plan.

 

(e) Withholding. All payments under the Plan will be subject to all applicable withholding obligations of the Company, including, without limitation, obligations to withhold for federal, state and local income and employment taxes.

 

Section 5. LIMITATIONS ON BENEFITS.

 

(a) Termination of Benefits. Benefits under the Plan shall terminate immediately if the Participant, at any time, (i) engages in the unauthorized use or disclosure of the Company’s material confidential information, material trade secrets or material proprietary information under any written agreement under which the Participant has such an obligation to the Company that survives the Participant’s termination of service to the Company, (ii) engages in any prohibited or unauthorized competitive activities, or prohibited or unauthorized solicitation or recruitment of employees, in violation of any written agreement under which Participant has such an obligation to the Company that survives the Participant’s termination of service to the Company; (iii) violates any material term or condition of this Plan, or (iv) violates any term of the Release.

 

(b) Non-Duplication of Benefits. No Participant is eligible to receive benefits under this Plan more than one time.

 

(c) Indebtedness of Participants. To the extent permitted by law, if a Participant is indebted to the Company or an affiliate of the Company on the date of his or her termination of employment or service, the Company reserves the right to offset any severance benefits payable in cash under the Plan by the amount of such indebtedness. A Participant may be required to execute an agreement to such effect if requested by the Company.

 

(d) Parachute Payments. If any payment or benefit a Participant would receive in connection with a Change in Control from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion of the Payment, up to and

 

9.


including the total Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Participant’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s stock awards.

 

The Company shall appoint a nationally recognized accounting or consulting firm to make the determinations required hereunder, which accounting firm shall not then be serving as accountant or auditor for the individual, entity or group that effected the Change in Control. The Company shall bear all expenses with respect to the determinations by such accounting or consulting firm required to be made hereunder.

 

The accounting or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Participant within 10 calendar days after the date on which the Participant’s right to a Payment is triggered (if requested at that time by the Company or the Participant) or such other time as requested by the Company or the Participant. If the accounting or consulting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and the Participant with an opinion reasonably acceptable to the Participant that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Participant.

 

Section 6. RIGHT TO INTERPRET PLAN; AMENDMENT AND TERMINATION.

 

(a) Exclusive Discretion. The Plan Administrator shall have the exclusive discretion and authority to establish rules, forms, and procedures for the administration of the Plan and to construe and interpret the Plan and to decide any and all questions of fact, interpretation, definition, computation or administration arising in connection with the operation of the Plan, including, but not limited to, the eligibility to participate in the Plan and amount of benefits paid under the Plan. The rules, interpretations, computations and other actions of the Plan Administrator shall be binding and conclusive on all persons. Unless otherwise determined by the Compensation Committee or the Board, the Chairman of the Compensation Committee (or the Chairman’s designee) shall perform the duties of the Plan Administrator under this Plan.

 

(b) Change of State of Incorporation, Amendment or Termination. The Board reserves the right to change the state of incorporation, and the Board and the Compensation Committee reserve the right to amend or terminate this Plan or the benefits provided hereunder at any time; provided, however, that no such change of state, amendment or termination shall impair or reduce the rights of a Participant unless such Participant consents to such amendment or termination of the Plan in writing. Notwithstanding the foregoing, the Plan shall automatically terminate on the tenth anniversary from the Adoption Date, unless extended

 

10.


by the Board or the Compensation Committee. Any action amending, terminating or extending the Plan shall be in writing and executed by the Board or the Compensation Committee.

 

Section 7. CONTINUATION OF CERTAIN EMPLOYEE BENEFITS.

 

(a) COBRA Continuation. Each Participant who is enrolled in a group medical, dental or vision plan sponsored by the Company or an affiliate of the Company may be eligible to continue coverage under such group medical, dental or vision plan (or to convert to an individual policy), at the time of the Participant’s termination of employment under COBRA. The Company will notify the Participant of any such right to continue group medical coverage at the time of termination. No provision of this Plan will affect the continuation coverage rules under COBRA. Therefore, the period during which a Participant may elect to continue the Company’s group medical, dental or vision coverage at his or her own expense under COBRA, the length of time during which COBRA coverage will be made available to the Participant, and all other rights and obligations of the Participant under COBRA will be applied in the same manner that such rules would apply in the absence of this Plan. At the conclusion of the COBRA premium reimbursements made by the Company, if any, the Participant will be responsible for the entire payment of premiums required under COBRA for the duration, if any, of the COBRA period.

 

(b) Other Employee Benefits. All non-health benefits (such as life insurance, AD&D, disability and 401(k) plan coverage) terminate as of an employee’s termination date (except to the extent that a conversion privilege may be available thereunder).

 

Section 8. NO IMPLIED EMPLOYMENT CONTRACT.

 

The Plan shall not be deemed (i) to give any employee or other person any right to be retained in the employ or service of the Company or (ii) to interfere with the right of the Company to discharge any employee or other person at any time and for any reason, which right is hereby reserved.

 

Section 9. LEGAL CONSTRUCTION.

 

This Plan is intended to be governed by and shall be construed in accordance with the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and, to the extent not preempted by ERISA, the laws of the State of California.

 

Section 10. CLAIMS, INQUIRIES AND APPEALS.

 

(a) Applications for Benefits and Inquiries. Any application for benefits, inquiries about the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan Administrator in writing by an applicant (or his or her authorized representative). The Plan Administrator is:

 

Compensation Committee

Attn: Chairman

 

11.


c/o Sequenom, Inc.

3595 John Hopkins Court

San Diego, CA 92121-1331

 

(b) Denial of Claims. In the event that any application for benefits is denied in whole or in part, the Plan Administrator must provide the applicant with written or electronic notice of the denial of the application, and of the applicant’s right to review the denial. Any electronic notice will comply with the regulations of the U.S. Department of Labor. The written notice of denial will be set forth in a manner designed to be understood by the employee and will include the following:

 

(1) the specific reason or reasons for the denial;

 

(2) references to the specific Plan provisions upon which the denial is based;

 

(3) a description of any additional information or material that the Plan Administrator needs to complete the review and an explanation of why such information or material is necessary; and

 

(4) an explanation of the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the applicant’s right to bring a civil action under section 502(a) of ERISA following a denial on review of the claim, as described in Section 10(d) below.

 

This written notice will be given to the applicant within 90 days after the Plan Administrator receives the application, unless special circumstances require an extension of time, in which case, the Plan Administrator has up to an additional 90 days for processing the application. If an extension of time for processing is required, written notice of the extension will be furnished to the applicant before the end of the initial 90-day period.

 

This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the application.

 

(c) Request for a Review. Any person (or that person’s authorized representative) for whom an application for benefits is denied, in whole or in part, may appeal the denial by submitting a request for a review to the Plan Administrator within 60 days after the application is denied. A request for a review shall be in writing and shall be addressed to:

 

Compensation Committee

Attn: Chairman

c/o Sequenom, Inc.

3595 John Hopkins Court

San Diego, CA 92121-1331

 

A request for review must set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant feels are pertinent. The

 

12.


applicant (or his or her representative) shall have the opportunity to submit (or the Plan Administrator may require the applicant to submit) written comments, documents, records, and other information relating to his or her claim. The applicant (or his or her representative) shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to his or her claim. The review shall take into account all comments, documents, records and other information submitted by the applicant (or his or her representative) relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.

 

(d) Decision on Review. The Plan Administrator will act on each request for review within 60 days after receipt of the request, unless special circumstances require an extension of time (not to exceed an additional 60 days), for processing the request for a review. If an extension for review is required, written notice of the extension will be furnished to the applicant within the initial 60 day period. This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the review. The Plan Administrator will give prompt, written or electronic notice of its decision to the applicant. Any electronic notice will comply with the regulations of the U.S. Department of Labor. In the event that the Plan Administrator confirms the denial of the application for benefits in whole or in part, the notice will set forth, in a manner calculated to be understood by the applicant, the following:

 

(1) the specific reason or reasons for the denial;

 

(2) references to the specific Plan provisions upon which the denial is based;

 

(3) a statement that the applicant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to his or her claim; and

 

(4) a statement of the applicant’s right to bring a civil action under section 502(a) of ERISA.

 

(e) Rules and Procedures. The Plan Administrator will establish rules and procedures, consistent with the Plan and with ERISA, as necessary and appropriate in carrying out its responsibilities in reviewing benefit claims. The Plan Administrator may require an applicant who wishes to submit additional information in connection with an appeal from the denial of benefits to do so at the applicant’s own expense.

 

(f) Exhaustion of Remedies. No legal action for benefits under the Plan may be brought until the claimant (i) has submitted a written application for benefits in accordance with the procedures described by Section 10(a) above, (ii) has been notified by the Plan Administrator that the application is denied, (iii) has filed a written request for a review of the application in accordance with the appeal procedure described in Section 10(c) above, and (iv) has been notified in writing that the Plan Administrator has denied the appeal. Notwithstanding the foregoing, if the Plan Administrator does not respond to a Participant’s

 

13.


claim or appeal within the relevant time limits specified in this Section 10, then the Participant may bring legal action for benefits under the Plan pursuant to Section 502(a) of ERISA.

 

Section 11. BASIS OF PAYMENTS TO AND FROM PLAN.

 

All benefits under the Plan shall be paid by the Company. The Plan shall be unfunded, and benefits hereunder shall be paid only from the general assets of the Company. A Participant’s right to receive payments under the Plan is no greater than that of the Company’s unsecured general creditors. Therefore, if the Company were to become insolvent, the Participant might not receive benefits under the Plan.

 

Section 12. OTHER PLAN INFORMATION.

 

(a) Employer and Plan Identification Numbers. The Employer Identification Number assigned to the Company (which is the “Plan Sponsor” as that term is used in ERISA) by the Internal Revenue Service is 77-036-5889. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the instructions of the Internal Revenue Service is 502.

 

(b) Ending Date for Plan’s Fiscal Year. The date of the end of the fiscal year for the purpose of maintaining the Plan’s records is December 31.

 

(c) Agent for the Service of Legal Process. The agent for the service of legal process with respect to the Plan is Sequenom, Inc., Attn: Chief Financial Officer, 3595 John Hopkins Court, San Diego, CA 92121-1331.

 

(d) Plan Sponsor and Plan Administrator. The “Plan Sponsor” of the Plan is Sequenom, Inc., 3595 John Hopkins Court, San Diego, CA 92121-1331. The Plan Sponsor’s and Plan Administrator’s telephone number is (858) 202-9000. The Plan Administrator is the named fiduciary charged with the responsibility for administering the Plan.

 

(e) Type of Plan. The Plan is a welfare benefit plan.

 

Section 13. STATEMENT OF ERISA RIGHTS.

 

Participants in this Plan (which is a welfare benefit plan sponsored by the Company) are entitled to certain rights and protections under ERISA. If you are a Participant in the Plan, under ERISA you are entitled to:

 

Receive Information about the Plan and Your Benefits

 

(a) Examine, without charge, at the Plan Administrator’s office and at other specified locations, such as work sites, all documents governing the Plan and a copy of the latest annual report (Form 5500 Series) filed by the Plan Administrator with the U.S. Department of Labor and available at the Public Disclosure Room of the Pension and Welfare Benefit Administration;

 

14.


(b) Obtain, upon written request to the Plan Administrator, copies of documents governing the operation of the Plan and copies of the latest annual report (Form 5500 Series). The Plan Administrator may make a reasonable charge for the copies; and

 

(c) Receive a summary of the Plan’s annual financial report. The Plan Administrator is required by law to furnish each Participant with a copy of this summary annual report.

 

Prudent Actions by Plan Fiduciaries

 

In addition to creating rights for Plan participants, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries.

 

Enforce Your rights

 

No one, including your employer or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a Plan benefit or exercising your rights under ERISA.

 

Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request a copy of Plan documents or the latest annual report from the Plan and do not receive them within 30 days, you may file suit in a Federal court. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator.

 

If you have a claim for benefits that is denied or ignored, in whole or in part, you may file suit in a state or Federal court. In addition, if you disagree with the Plan Administrator’s decision or lack thereof concerning the qualified status of a domestic relations order or a medical child support order, you may file suit in Federal court.

 

If it should happen that the Plan fiduciaries misuse the Plan’s money, or if you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a Federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.

 

Assistance with Your Questions

 

If you have any questions about the Plan, you should contact the Plan Administrator. If you have any questions about this statement or about your rights under ERISA, or if you need assistance in obtaining documents from the Plan Administrator, you should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution

 

15.


Avenue N.W., Washington, D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration or accessing its website at http://www.dol.gov/ebsa/.

 

Section 14. SUCCESSORS AND ASSIGNS.

 

This Plan shall be binding upon any surviving entity resulting from a Change in Control and upon any other person who is a successor by merger, acquisition, consolidation or otherwise to the business formerly carried on by the Company without regard to whether or not such person actively adopts or formally continues the Plan. Participants, to the extent they are otherwise eligible for benefits under the Plan, are intended third party beneficiaries of this provision.

 

Section 15. EXECUTION.

 

To record the adoption of the amendment and restatement of the Plan as set forth herein, Sequenom, Inc. has caused its duly authorized officer to execute the same this 9th day of February 2009.

 

SEQUENOM, INC.

/s/ Harry Stylli

Harry Stylli

President and Chief Executive Officer

 

16.


EXHIBIT A

 

SEQUENOM, INC.

CHANGE IN CONTROL SEVERANCE BENEFIT PLAN

 

PARTICIPATION NOTICE

 

To:                                                                     

 

Date:                                                                 

 

Deadline to Return Participation Notice:                                                                     

 

Sequenom, Inc. (the “Company”) has adopted the Change in Control Severance Benefit Plan (the “Plan”). The Company is providing you with this Participation Notice to inform you that you have been designated as a Participant in the Plan.

 

A copy of the Plan document is attached to this Participation Notice. The terms and conditions of your participation in the Plan are as set forth in the Plan and this Participation Notice, which together also constitute a summary plan description of the Plan.

 

In consideration for the benefits set forth in the Plan, each Participant’s severance benefits shall be governed by the terms of the Plan and the Plan shall supersede and replace any individually negotiated employment contract or agreement and all severance or change in control benefits payable to you as set forth in any agreement, including offer letters, with the Company entered into prior to the date hereof [including ______________________.]

 

Notwithstanding the terms of the Plan:

 


 


 

If you choose to participate in the Plan, please return to [            ] a copy of this Participation Notice and attached Acknowledgement signed by you and retain a copy of this Participation Notice and attached Acknowledgement, along with the Plan document, for your records. Please note that you are not a Participant in the Plan until you execute and return this Participation Notice and attached Acknowledgement to the Company no later than [            ].

 

SEQUENOM, INC.

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Participant

Its:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Print Name

 

17.


ACKNOWLEDGEMENT

 

The undersigned Participant hereby acknowledges receipt of the foregoing Participation Notice. In the event the undersigned holds outstanding stock options or restricted stock unit awards as of the date of this Participation Notice, the undersigned hereby:*

 

 

¨

accepts all of the benefits of Section 4(a)(4) of the Plan regardless of any potential adverse effects on any outstanding option or other stock award

 

 

¨

accepts the benefits of Sections 4(a)(4) of the Plan that have no adverse effect on outstanding options, restricted stock unit awards or other stock awards and rejects the benefits of Sections 4(a)(4) of the Plan as to those outstanding options and other stock awards that would have potential adverse effects

 

 

¨

other (please describe): ____________________________________________

 


 


 

The undersigned acknowledges that the undersigned has been advised to obtain tax and financial advice regarding the consequences of this election including the effect, if any, on the status of the stock options or restricted stock unit awards for tax purposes under Sections 409A and 422 of the Internal Revenue Code.

 

 

Participant

 

Print name

 

* Please check one box; failure to check a box will be deemed the selection of the second alternative (i.e., accepting the benefits of Section 4(a)(4) of the Plan that have no adverse effect on outstanding options, restricted stock unit awards or other stock awards and rejecting the benefits of Section 4(a)(4) of the Plan as to those outstanding options, restricted stock unit awards and other stock awards that would have potential adverse effects).

 

18.


For Employees Age 40 or Older

Individual Termination

 

EXHIBIT B

 

RELEASE AGREEMENT

 

I understand and agree completely to the terms set forth in the Sequenom, Inc. Change in Control Severance Benefit Plan (the “Plan).

 

I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. This Release and Waiver may only be modified by a writing signed by both me and a duly authorized officer of the Company. Certain capitalized terms used in this Release are defined in the Plan.

 

I hereby confirm my obligations under the Company’s Employee Proprietary Information and Inventions Agreement.

 

In exchange for the consideration to be provided to me under the Plan to which I am not otherwise entitled, I hereby generally and completely release Sequenom, Inc. and its current and former directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (collectively, the “Released Parties”) from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Agreement (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company, or the termination of that employment; (2) all claims related to my compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the California Fair Employment and Housing Act (as amended). Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the charter, bylaws, or operating agreements of the Company, or under applicable law; or (2) any rights which are not waivable as a matter of law. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded

 

1.


For Employees Age 40 or Older

Individual Termination

 

Claims, I am not aware of any claims I have or might have against any of the Released Parties that are not included in the Released Claims.

 

I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA. I also acknowledge that the consideration given for the Released Claims is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) the Released Claims do not apply to any rights or claims that arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have 21 days to consider this Release (although I may choose to voluntarily to sign it sooner); (d) I have seven days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company; and (e) the Release will not be effective until the date upon which the revocation period has expired unexercised, which will be the eighth day after I sign this Release (“Effective Date”).

 

I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to my release of any claims hereunder.

 

I hereby represent that I have been paid all compensation owed and for all hours worked, I have received all the leave and leave benefits and protections for which I am eligible, and I have not suffered any on-the-job injury for which I have not already filed a workers’ compensation claim.

 

I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than 21 days following the date it is provided to me, and I must not revoke it thereafter.

 

EMPLOYEE

Name:

 

 

Date:

 

 

 

2.


For Employees Age 40 or Older

Group Termination

 

EXHIBIT C

 

RELEASE AGREEMENT

 

I understand and agree completely to the terms set forth in the Sequenom, Inc. Change in Control Severance Benefit Plan (the “Plan).

 

I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. This Release and Waiver may only be modified by a writing signed by both me and a duly authorized officer of the Company. Certain capitalized terms used in this Release are defined in the Plan.

 

I hereby confirm my obligations under the Company’s Employee Proprietary Information and Inventions Agreement.

 

In exchange for the consideration to be provided to me under the Plan to which I am not otherwise entitled, I hereby generally and completely release Sequenom, Inc. and its current and former directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (collectively, the “Released Parties”) from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Agreement (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company, or the termination of that employment; (2) all claims related to my compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the California Fair Employment and Housing Act (as amended). Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the charter, bylaws, or operating agreements of the Company, or under applicable law; or (2) any rights which are not waivable as a matter of law. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded

 

1.


For Employees Age 40 or Older

Group Termination

 

Claims, I am not aware of any claims I have or might have against any of the Released Parties that are not included in the Released Claims.

 

I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA. I also acknowledge that the consideration given for the Released Claims is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) the Released Claims do not apply to any rights or claims that arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have 45 days to consider this Release (although I may choose to voluntarily to sign it sooner); (d) I have seven days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company; and (e) the Release will not be effective until the date upon which the revocation period has expired unexercised, which will be the eighth day after I sign this Release (“Effective Date”).

 

I further acknowledge that I have received the disclosure required by 29 U.S.C. § 626 (f)(1)(H), which is attached hereto as Appendix I.

 

I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to my release of any claims hereunder.

 

I hereby represent that I have been paid all compensation owed and for all hours worked, I have received all the leave and leave benefits and protections for which I am eligible, and I have not suffered any on-the-job injury for which I have not already filed a workers’ compensation claim.

 

I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than 45 days following the date it is provided to me, and I must not revoke it thereafter.

 

EMPLOYEE

Name:

 

 

Date:

 

 

 

2.


For Employees Age 40 or Older

Group Termination

 

APPENDIX I

 

DISCLOSURE UNDER TITLE 29 U.S. CODE SECTION 626(F)(1)(H)

 

Confidentiality Provision:

  

The information contained in this document is private and confidential. You may not disclose this information to anyone except your professional advisors.

 

[Job classifications/positions] informed on [date] of the termination of their employment are eligible to participate in the severance package program. The factors considered in selecting employees for employment termination on [                    ] were: [                    ]. An eligible employee age 40 or more years will have up to forty-five (45) days to review the terms and conditions of the severance package.

 

EMPLOYEES ELIGIBLE FOR THE SEVERANCE PACKAGE PROGRAM

JOB TITLES

 

AGE OF THOSE ELIGIBLE

 

AGE OF THOSE NOT ELIGIBLE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.


Individuals Under Age 40

Individual or Group Termination

 

EXHIBIT D

 

RELEASE AGREEMENT

 

I understand and agree completely to the terms set forth in the Sequenom, Inc. Change in Control Severance Benefit Plan (the “Plan).

 

I understand that this Release, together with the Plan, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. This Release and Waiver may only be modified by a writing signed by both me and a duly authorized officer of the Company. Certain capitalized terms used in this Release are defined in the Plan.

 

I hereby confirm my obligations under the Company’s Employee Proprietary Information and Inventions Agreement.

 

In exchange for the consideration to be provided to me under the Plan to which I am not otherwise entitled, I hereby generally and completely release Sequenom, Inc. and its current and former directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (collectively, the “Released Parties”) from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Agreement (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company, or the termination of that employment; (2) all claims related to my compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, and the California Fair Employment and Housing Act (as amended). Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the charter, bylaws, or operating agreements of the Company, or under applicable law; or (2) any rights which are not waivable as a matter of law. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might have against any of the Released Parties that are not included in the Released Claims.


Individuals Under Age 40

Individual or Group Termination

 

I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to my release of any claims hereunder.

 

I hereby represent that I have been paid all compensation owed and for all hours worked, I have received all the leave and leave benefits and protections for which I am eligible, and I have not suffered any on-the-job injury for which I have not already filed a workers’ compensation claim.

 

I acknowledge that I have the right to consult with an attorney prior to executing this Release (although I may choose voluntarily not to do so) and that I have 14 days from receipt of this Release in which to consider this Release (although I may choose voluntarily to execute this Release earlier). I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than 14 days following the date it is provided to me.

 

EMPLOYEE

Name:

 

 

Date:

 

 

 

2.