Exhibit 10.29
SEQUENOM INC.
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (this “ Agreement ”) is entered
into between Sequenom, Inc. a Delaware corporation (the “
Company ”) and Harry Stylli, Ph.D. (“
Employee ”), on December 15, 2008. This
Agreement shall replace and supersede that certain Employment
Agreement between Employee and the Company entered into effective
as of May 31, 2005 (the “ Prior Agreement
”). 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. Employee will
continue to be employed by the Company as its President and Chief
Executive Officer. Employee previously commenced employment with
the Company in June 2005, (such hire date is referred to herein as
the “Hire Date” ). 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 (as defined in
Section 10(c) herein), in accordance with and subject to the
terms of Section 10 of this Agreement. Similarly, Employee may
terminate employment with the Company at any time for any reason
upon written notice as provided in Section 10 of this
Agreement. Employee understands and agrees that the at-will nature
of Employee’s employment relationship with the Company cannot
be changed or modified except by a written agreement signed by the
Chairman of the Board of Directors of the Company (the “
Board ”).
1.2 Director. Effective as of
the Hire Date, employee was elected to the Board. Employee agrees
to resign as a director of the Company, if requested to do so by
the Board, upon the termination of his employment with the
Company.
2. 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.
3. 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 a member
of the board of directors of Xencor and Molecular Insight
Pharmaceuticals, as an advisor to Nanosyn and as a passive owner in
a start-up internet business that is tentatively named BIZbt. In
addition, Employee may serve as director or trustee of one or more
other corporations or foundations (either for-profit or
not-for-profit) if such service has been approved by the Board.
Employee will refer to the Company all corporate opportunities
Employee learns of as a result of service of an employee of the
Company.
4. Compensation and
Benefits.
4.1 Salary. Employee’s
annual base salary shall be $441,000, less standard deductions and
withholdings, payable in accordance with the Company’s
standard
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payroll policy. Such base salary may be
increased, subject to approval by the Compensation Committee of the
Board.
4.2 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 calendar year that
follows the calendar year for which it was earned.
4.3 Inducement Stock Options.
Effective as of the Hire Date and as an inducement to join the
Company, the Company granted to Employee stock options to purchase
an aggregate of 1,000,000 shares of the common stock of the
Company, $0.001 par value per share (the “ Common
Stock ”). The exercise price for such stock options
was equal to the fair market value of the Common Stock on the Hire
Date, as determined by the Board. Such stock options have a 10 year
term and become exercisable or “vest” as described in
the individual stock option agreement (twenty-five percent after
one year of employment from the Hire Date, and the balance in 36
equal monthly installments thereafter so long as Employee remains
employed by the Company), subject to acceleration as set forth
below. In addition, Employee will be permitted to exercise such
stock options for up to one year following termination of his
employment by the Company (but in any event no later than the end
of the maximum permitted term of the option). Such stock options
shall not vest during the Consulting Period (as defined in
Section 12.1 herein) or any other time that Employee is not
employed by the Company. The other terms and conditions of such
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 1999 Stock Incentive Plan
(the “Option Plan” ); provided,
however, that such stock options may not be granted pursuant to
the Option Plan.
4.4 Contingent Stock Options.
Upon the closing of the sale by the Company of any equity financing
(which may include one or more related closings for the sale of
newly issued shares of Common Stock or preferred stock or other
securities convertible into or exercisable for Common Stock) for
aggregate gross proceeds of at least $10 million prior to
July 1, 2006, the Company shall grant to Employee pursuant to
the Option Plan additional stock options to purchase that number of
shares of Common Stock necessary for Employee to retain an
equivalent ownership position, on a fully diluted basis (assuming
the exercise and conversion of all outstanding securities
convertible into or exercisable for Common Stock), as that held by
Employee immediately prior to such closing. Such additional stock
options, if granted, shall have an exercise price equal to the fair
market value of the Common Stock on the date of such closing, as
determined by the Board. Such additional stock options, if granted,
shall have a 10 year term and vest as described in the
individual grant option agreement (twenty-five percent after one
year of employment from the date of grant, and the balance in 36
equal monthly installments thereafter so long as Employee remains
employed by the Company), subject to acceleration as set forth
below. In addition, Employee will be permitted to exercise such
stock options for up to one year following termination of his
employment by the Company (but in any event no later than the end
of the maximum permitted term of the option). Such additional stock
options shall not vest during the Consulting Period or any other
time that Employee is not employed by the Company. The other terms
and conditions of such stock options shall be governed by the
Option Plan and the individual stock option agreements.
4.5 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 ”.
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4.6 Other Benefits. Employee
shall receive the following employee benefits:
(a) participation for Employee and
his family in the Company’s group health insurance
programs;
(b) term life insurance coverage of
$1,000,000;
(c) disability insurance providing
long-term coverage of $20,000 per month; and
(d) 8 Company-wide holidays, 8
individual floating holidays and 17 paid vacation days (excluding
individual floating holidays) per calendar year.
In the case of clauses (a), (b) and
(c) above, with insurance companies and on such other terms,
including but not limited to eligibility, exclusions and coverage
limitations, as are reasonably acceptable to Employee; provided,
however, that the aggregate additional cost to the Company of
the insurance coverage described in clauses (b) and
(c) in excess of that provided to employees of the Company
generally shall not exceed $15,000 per year and if such cost would
exceed $15,000, Employee shall be entitled to adjust the coverage
so that such aggregate additional cost shall not exceed $15,000. In
addition, 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. Employee
understands that, except when prohibited by applicable law, the
Company’s employee benefit plans and fringe benefits,
including the Option Plan, may be amended, enlarged, diminished or
terminated by the Company from time to time, in its sole
discretion.
4.7 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.
5. Employee’s
Performance .
5.1 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.
5.2 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
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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.
5.3 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.
6. 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.
7. 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.
8. 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, 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.
9. 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,
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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 9 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.
10. Termination.
Employee’s employment hereunder shall terminate upon the
occurrence of any of the following events:
(a) The death or legal incapacity of
Employee.
(b) Written notice from the Company
to Employee of Employee’s employment termination as a result
of Employee’s permanent disability. For purposes of this
Agreement, Employee’s “permanent disability”
shall be deemed to have occurred if Employee shall become
physically or mentally incapacitated or disabled and unable fully
to discharge his duties hereunder by reason of any medically
determinable physical or mental impairment for a period of 180
consecutive calendar days; provided that in no event shall
Employee’s permanent disability be deemed to have occurred if
Employee is not then eligible to receive the long-term disability
insurance benefits described in Section 4.6 of this Agreement.
The existence of Employee’s permanent disability shall be
determined on the advice of a physician mutually acceptable to the
Company and Employee (or Employee’s legal
representative).
(c) Written notice from the Company
to Employee of Employee’s employment termination by the
Company for Cause (as hereafter defined). The Company shall have
“Cause” for termination of Employee’s employment
if any of the following occur:
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i.
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Employee is
convicted of, or pleads guilty or nolo contendere to, any felony,
or any lesser crime or offense having as its predicate element
fraud or dishonesty;
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ii.
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Employee
misappropriates or steals any of the property of the
Company;
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iii.
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Employee
knowingly and willfully perpetrates any act or omission that
submits the Company to criminal liability or knowingly and
willfully causes the Company to commit a material violation of
local, state or federal laws, rules or regulations;
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iv.
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Employee
breaches any provision of this Agreement or the Inventions
Agreement and such breach has a material adverse effect on the
Company and its subsidiaries, taken as a whole, which breach
remains uncure
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