|
Exhibit
99.1
S EQUENOM ,
I NC .
CHANGE IN CONTROL
SEVERANCE BENEFIT PLAN
| Section 1. |
I NTRODUCTION . |
The Sequenom, Inc. Change in
Control Severance Benefit Plan (the
“Plan” ) was established effective
October 11, 2007 (the “Adoption
Date” ). 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 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. |
D EFINITIONS . |
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.
(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 19
th
through the 24 th 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
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:
(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 less than his or her Target Bonus
during the subsequent applicable period;
(4) Any requirement,
as a condition to continued service, that the Participant enter
into any agreement with the Company regarding confidentiality,
non-competition, non-solicitation or other similar restrictive
covenant that is materially more restrictive than the
Participant’s written obligations with the Company under
which the Participant is then bound;
(5) Any Board action
or assignment related to such Participant that is contrary to
applicable law, regulatory guidelines or accounting standards or
which constitutes an unethical business practice; or
(6) A 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 15 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, 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.
(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 next 24 monthly time-based vesting installments
following the Covered Termination for a Tier II Participant and
(iii) the next 12 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:
|
|
|
|
T
ERM
|
|
S ECTION |
|
“Adoption
Date”
|
|
1 |
|
|
|
“COBRA”
|
|
4(a)(3) |
|
|
|
“Code”
|
|
4(d) |
|
|
|
|
T
ERM
|
|
S ECTION |
|
“ERISA”
|
|
9 |
|
|
|
“Excise
Tax”
|
|
5(d) |
|
|
|
“Payment”
|
|
5(d) |
|
|
|
“Plan”
|
|
1 |
|
|
|
“Plan
Sponsor”
|
|
12(d) |
|
|
|
“Reduced
Amount”
|
|
5(d) |
|
|
|
“Release”
|
|
3 |
| Section 3. |
E LIGIBILITY F OR B
ENEFITS . |
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. |
A MOUNT O F B
ENEFIT . |
(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.
(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 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 . Severance benefits payable under the Plan
are intended to be payable pursuant to a window program pursuant to
Section 1.409A-1(b)(9)(iii) of the Internal Revenue Service
Treasury Regulations, to the maximum extent permitted by said
provision, with any excess amount being regarded as subject to the
distribution requirements of Section 409A(a)(2)(A) of the
Internal Revenue Code of 1986, as amended (the
“Code” ), including, without limitation,
the requirement of Section 409A(a)(2)(B)(i) of the Code that
payment to Participant be delayed, if necessary, until six months
after the Participant’s separation from service if
Participant is a “specified employee” within the
meaning of the aforesaid section of the Code at the time of such
separation from service.
(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. |
L IMITATIONS ON B
ENEFITS . |
(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 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 paym
|