<PAGE>
As filed with the Securities and Exchange Commission on January 31, 2000
Registration No. 333-_________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------------
SEQUENOM, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0365889
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
11555 Sorrento Valley Road, San Diego, California 92121
(Address of principal executive offices) (Zip Code)
------------------------
SEQUENOM, INC.
1999 STOCK INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
-----------------------
Mr. Hubert Koster
President and Chief Executive Officer
Sequenom, Inc.
11555 Sorrento Valley Road
San Diego, California 92121
(Name and address of agent for service)
(858) 350-0345
(Telephone number, including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Amount Proposed Proposed Amount of
Title of Securities to be Maximum Offering Maximum Aggregate Registration
to Be Registered Registered(1) Price per Share Offering Price Fee
---------------- ------------- --------------- -------------- ---
<S> <C> <C> <C> <C>
1999 Stock Incentive Plan
- -------------------------
Common Stock 1,199,425 shares $ 1.86(2) $ 2,230,930(2) $ 589
Common Stock 971,000 shares $25.00(3) $ 24,275,000(3) $6,409
1999 Employee Stock Purchase Plan
- ---------------------------------
Common Stock 250,000 shares $25.00(3) $ 6,250,000(3) $1,650
Aggregate Amount of
Registration Fee $8,648
==================================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Registrant's common stock which become issuable under the 1999 Stock
Incentive Plan and the 1999 Employee Stock Purchase Plan with respect to
the securities registered hereunder by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of common stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, and, as to the 1,199,425 shares of
common stock purchasable upon exercise of outstanding options, based upon
the average price at which such options may be exercised.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, and, as to the remaining 971,000 shares
of common stock issuable upon exercise of options reserved for issuance and
the 250,000 shares of common stock reserved for purchase pursuant to the
1999 Employee Stock Purchase Plan, based upon the fair market value per
share of the Registrant's common stock on January 27, 2000, as determined
by the Registrant's Board of Directors.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act"), and the Note to Part I of Form S-8.
Item 2. Registration Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Sequenom, Inc. incorporates by reference into this Registration
Statement the following documents previously filed with the SEC:
(a) Our Registration Statement No. 333-91665 on Form S-1 filed with the
SEC on November 24, 1999, together with the amendments filed with the
SEC on December 7, 1999, January 3, 2000, January 6, 2000, January
24, 2000 and January 27, 2000.
(b) None.
(c) Our Registration Statement No. 000-29101 on Form 8-A filed with
the SEC on January 25, 2000, in which we describe the terms, rights
and provisions applicable to our outstanding common stock.
All reports and definitive proxy or information statements filed under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after
the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered under this
Registration Statement have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part of this Registration Statement from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
Registration Statement or in any subsequently filed document which also is
deemed to be incorporated by reference in this Registration Statement modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of common offered hereby will be passed upon for
us by Brobeck, Phleger & Harrison LLP, San Diego, California.
Item 6. Indemnification of Directors and Officers
Our certificate provides that, except to the extent prohibited by Delaware
law, our directors shall not be personally liable to us or our stockholders for
monetary damages for breach of their fiduciary duty as directors. Under Delaware
law, the directors have a fiduciary duty to us which is not eliminated by this
provision of our certificate and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available. In addition, each director will continue to be subject to liability
under Delaware law for breach of their duty of loyalty to us or our
stockholders; for acts or omissions which are found by a court of competent
jurisdiction to be not in good faith or which involve intentional misconduct or
knowing violations of law; for actions leading to improper personal benefit to
the director; and for payment of dividends or approval of stock repurchases or
redemptions that are prohibited by Delaware law. This provision also does not
affect the directors' responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
II-1
<PAGE>
Section 145 of the Delaware General Corporation Law allows a corporation to
indemnify its directors and officers and to purchase insurance with respect to
liability arising out of their capacity or status as directors and officers,
provided that the indemnification does not eliminate or limit the liability of a
director for the following:
. any breach of the director's duty of loyalty to us or our stockholders;
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. unlawful payments of dividends or unlawful stock purchases or
redemptions; and
. any transaction from which the director derived an improper personal
benefit.
Delaware law further provides that the permitted indemnification shall not
be deemed exclusive of any other rights to which the directors and officers may
be entitled under our bylaws, any agreement, a vote of stockholders or
otherwise. Our certificate eliminates the personal liability of directors to
the fullest extent permitted by Delaware law. In addition, our certificate
provides that we may fully indemnify any person through bylaw provisions,
agreements with such person, vote of stockholders or disinterested directors or
otherwise, in excess of the indemnification and advancement otherwise permitted
by Section 145 of the Delaware General Corporation Law, subject only to limits
created by applicable Delaware law (statutory or non-statutory), with respect to
action for breach of duty to us, our stockholders or others.
We have also entered into agreements to indemnify our directors and
executive officers, in addition to the indemnification provided for in our
bylaws. We believe that these provisions and agreements are necessary to
attract and retain qualified directors and executive officers. Our bylaws also
permit us to secure insurance on behalf of any officer, director, employee or
other agent for any liability arising out of his or her actions, regardless of
whether Delaware law would permit indemnification. We plan to apply for
liability insurance for our officers and directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
10.59+ 1999 Stock Incentive Plan.
10.60+ 1999 Employee Stock Purchase Plan.
10.61+ 1999 Stock Incentive Plan Form of Notice of Grant of Stock
Option.
10.62+ 1999 Stock Incentive Plan Form of Stock Option Agreement.
99.1 Addendum to Stock Option Agreement.
99.2 Addendum to Stock Option Agreement -- LSAR.
99.3 Salary Investment Option Grant Election.
99.4 Notice of Grant Under Salary Investment Program.
99.5 Salary Investment Stock Option Agreement.
99.6 Stock Issuance Agreement.
99.7 Addendum to Stock Issuance Agreement.
99.8 Notice of Grant - Non-Employee Director - INITIAL Grant.
99.9 Notice of Grant - Non-Employee Director - ANNUAL Grant.
99.10 Automatic Stock Option Agreement.
99.11 Director Fee Election.
99.12 Notice of Grant of Non-Employee Director under Director Fee
Program.
99.13 Director Fee Stock Option Agreement.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
+ Incorporated by reference to Exhibits 10.59 through 10.62
previously filed with the Registrant's Registration Statement
on Form S-1 (Registration No. 333-91665)
II-2
<PAGE>
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement: (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the
prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; provided, however, that clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those clauses is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference into this Registration Statement; (2)
that for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (3) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the Sequenom, Inc. 1999 Stock Incentive Plan and 1999
Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 that is incorporated by reference into this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the indemnification provisions summarized
in Item 6 or otherwise, the Registrant has been advised that, in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California on this
31st day of January, 2000.
SEQUENOM, INC.
By: /s/ Hubert Koster
--------------------------------------
Hubert Koster
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hubert Koster, President and Chief
Executive Officer, and Stephen Zaniboni, Senior Vice President and Chief
Financial Officer, and each of them, as such person's true and lawful attorneys-
in-fact and agents, with full power of substitution and resubstitution, for such
person and in such person's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his or her substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
Signature Title Date
- --------- ----- ----
/s/ Hubert Koster President, Chief Executive Officer January 31, 2000
- ------------------------ and Director (principal executive
Hubert Koster officer)
/s/ Stephen Zaniboni Senior Vice President and January 31, 2000
- ------------------------ Chief Financial Officer
Stephen Zaniboni (principal financial and
accounting officer
/s/ Helmut Schuhsler Director January 31, 2000
- ------------------------
Helmut Schuhsler
/s/ Ernst-Gunter Afting Director January 31, 2000
- ------------------------
Ernst-Gunter Afting
/s/ John Lucas Director January 31, 2000
- ------------------------
John Lucas
/s/ Peter Reinisch Director January 31, 2000
- ------------------------
Peter Reinisch
II-4
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
SEQUENOM, INC.
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
10.59+ 1999 Stock Incentive Plan.
10.60+ 1999 Employee Stock Purchase Plan.
10.61+ 1999 Stock Incentive Plan Form of Notice of Grant of Stock
Option.
10.62+ 1999 Stock Incentive Plan Form of Stock Option Agreement.
99.1 Addendum to Stock Option Agreement.
99.2 Addendum to Stock Option Agreement -- Limited Stock
Appreciation Right.
99.3 Salary Investment Option Grant Election.
99.4 Notice of Grant Under Salary Investment Program.
99.5 Salary Investment Stock Option Agreement.
99.6 Stock Issuance Agreement.
99.7 Addendum to Stock Issuance Agreement.
99.8 Notice of Grant - Non-Employee Director - INITIAL Grant.
99.9 Notice of Grant - Non-Employee Director - ANNUAL Grant.
99.10 Automatic Stock Option Agreement.
99.11 Director Fee Election.
99.12 Notice of Grant of Non-Employee Director under Director Fee
Program.
99.13 Director Fee Stock Option Agreement.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
+ Incorporated by reference to Exhibits 10.59 through 10.62
previously filed with the Registrant's Registration Statement
on Form S-1 (Registration No. 333-91665)
<PAGE>
EXHIBIT 5.1
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
January 31, 2000
Sequenom, Inc.
11555 Sorrento Valley Road
San Diego, California 92121
Re: Sequenom, Inc. Registration Statement on Form S-8 for (i)
2,170,425 Shares of Common Stock Issuable Under the 1999 Stock
Incentive Plan and (ii) 250,000 Shares of Common Stock Issuable
Under the 1999 Employee Stock Purchase Plan
Ladies and Gentlemen:
We have acted as counsel to Sequenom, Inc., a Delaware corporation
(the "Company"), in connection with the registration on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, of
2,170,425 shares of common stock and related stock options issuable under the
Sequenom, Inc. 1999 Stock Incentive Plan (the "Option Plan") and 250,000 shares
of common stock issuable under the Sequenom, Inc. 1999 Employee Stock Purchase
Plan (the "Purchase Plan"). All of such shares of common stock are
collectively referred to herein as the "Shares."
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment and
administration of the Option Plan and the Purchase Plan. Based on such review,
we are of the opinion that if, as and when the 2,420,425 Shares reserved in the
aggregate under the Option Plan and the Purchase Plan have been issued and sold
(and the consideration therefor received) pursuant to (a) the provisions of
option agreements duly authorized under the Option Plan and in accordance with
the Registration Statement, or (b) duly authorized direct stock issuances in
accordance with the Option Plan or the Purchase Plan and in accordance with the
Registration Statement, those Shares will be legally issued, fully paid and
nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Option Plan, the Purchase Plan or the Shares.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 99.1
Addendum to Stock Option Agreement
----------------------------------
<PAGE>
ADDENDUM
TO
STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are hereby made a
part of, that certain Stock Option Agreement (the "Option Agreement") by and
between Sequenom, Inc. (the "Corporation") and _______________________________
("Optionee") evidencing the stock option (the "Option") granted this day to
Optionee under the terms of the Corporation's 1999 Stock Incentive Plan, and
such provisions are effective immediately. All capitalized terms in this
Addendum, to the extent not otherwise defined herein, shall have the meanings
assigned to them in the Option Agreement.
INVOLUNTARY TERMINATION FOLLOWING
CORPORATE TRANSACTION/CHANGE IN CONTROL
1. To the extent the Option is to be assumed in connection with a Corporate
Transaction, the Option shall not, pursuant to the provisions of Paragraph 6 of
the Option Agreement, accelerate upon the occurrence of that Corporate
Transaction, and the Option shall accordingly continue, over Optionee's period
of Service after the Corporate Transaction, to become exercisable for the Option
Shares in one or more installments in accordance with the provisions of the
Option Agreement. However, immediately upon an Involuntary Termination of
Optionee's Service within eighteen (18) months following such Corporate
Transaction, the assumed Option, to the extent outstanding at the time but not
otherwise fully exercisable, shall automatically accelerate so that the Option
shall become immediately exercisable for all the Option Shares at the time
subject to the Option and may be exercised for any or all of those Option Shares
as fully vested shares.
2. The Option shall not accelerate upon the occurrence of a Change in
Control, and the Option shall, over Optionee's period of Service following such
Change in Control, continue to become exercisable for the Option Shares in one
or more installments in accordance with the provisions of the Option Agreement.
However, immediately upon an Involuntary Termination of Optionee's Service
within eighteen (18) months following the Change in Control, the Option, to the
extent outstanding at the time but not otherwise fully exercisable, shall
automatically accelerate so that the Option shall become immediately exercisable
for all the Option Shares at the time subject to the Option and may be exercised
for any or all of those Option Shares as fully vested shares.
3. The Option as accelerated pursuant to this Addendum shall remain so
exercisable until the earlier of (i) the Expiration Date or (ii) the expiration
-------
of the one (1)-year period measured from the date of the Optionee's Involuntary
Termination.
<PAGE>
4. For purposes of this Addendum the following definitions shall be in
effect:
(i) An INVOLUNTARY TERMINATION shall mean the termination of Optionee's
Service by reason of:
(A) Optionee's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
(B) Optionee's voluntary resignation following (A) a change in
Optionee's position with the Corporation (or Parent or Subsidiary employing
Optionee) which materially reduces Optionee's duties and responsibilities or the
level of management to which Optionee reports, (B) a reduction in Optionee's
level of compensation (including base salary, fringe benefits and target bonus
under any corporate performance based bonus or incentive programs) by more than
fifteen percent (15%) or (C) a relocation of Optionee's place of employment by
more than fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without Optionee's consent.
(ii) A CHANGE IN CONTROL shall be deemed to occur in the event of a
change in ownership or control of the Corporation effected through either of the
following transactions:
(A) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders, or
(B) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (i) have been Board
members continuously since the beginning of such period or (ii) have been
elected or nominated for election as Board members during such period by at
least a majority of the Board members described in clause (i) who were still in
office at the time the Board approved such election or nomination.
5. The provisions of Paragraph 1 of this Addendum shall govern the period
for which the Option is to remain exercisable following the Involuntary
Termination of Optionee's Service within eighteen (18) months after the
Corporate Transaction or Change in Control and shall supersede any provisions to
the contrary in Paragraph 5 of the Option Agreement.
2
<PAGE>
IN WITNESS WHEREOF, Sequenom, Inc. has caused this Addendum to be executed
by its duly authorized officer as of the Effective Date specified below.
SEQUENOM, INC.
By: ________________________________
Title:______________________________
EFFECTIVE DATE: _____________________________
3
<PAGE>
EXHIBIT 99.2
Addendum to Stock Option Agreement -- Limited Stock Appreciation Right
----------------------------------------------------------------------
<PAGE>
ADDENDUM
TO
STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are hereby
made a part of, that certain Stock Option Agreement (the "Option Agreement") by
and between Sequenom, Inc. (the "Corporation") and _____________________________
("Optionee") evidencing the stock option (the "Option") granted this day to
Optionee under the terms of the Corporation's 1999 Stock Incentive Plan, and
such provisions are effective immediately. All capitalized terms in this
Addendum, to the extent not otherwise defined herein, shall have the meanings
assigned to them in the Option Agreement.
LIMITED STOCK APPRECIATION RIGHT
1. Optionee is hereby granted a limited stock appreciation right
exercisable upon the following terms and conditions:
(a) Optionee shall have the unconditional right, exercisable
at any time during the thirty (30)-day period immediately following a
Hostile Take-Over, to surrender the Option to the Corporation. In return
for the surrendered Option, Optionee shall receive a cash distribution from
the Corporation in an amount equal to the excess of (A) the Take-Over Price
of the shares of Common Stock which are the time subject to the surrendered
option (whether or not the Option is otherwise at the time exercisable for
those shares) over (B) the aggregate Exercise Price payable for such
shares.
(b) To exercise this limited stock appreciation right,
Optionee must, during the applicable thirty (30)-day exercise period,
provide the Corporation with written notice of the option surrender in
which there is specified the number of Option Shares as to which the Option
is being surrendered. Such notice must be accompanied by the return of
Optionee's copy of the Option Agreement, together with any written
amendments to such Agreement. The cash distribution shall be paid to
Optionee within five (5) business days following such delivery date. The
exercise of the limited stock appreciation right in accordance with the
terms of this Addendum is hereby pre-approved by the Plan Administrator in
advance of such exercise, and no further approval of the Plan Administrator
or the Board shall be required at the time of the actual option surrender
and cash distribution. Upon receipt of such cash distribution, the Option
shall be cancelled with respect to the Option Shares for which the Option
has been surrendered, and Optionee shall cease to have any further right to
acquire those Option Shares under the Option Agreement. The Option shall,
however, remain outstanding for the balance of the Option Shares (if any)
in accordance with the terms of the Option Agreement, and the Corporation
shall issue a replacement stock option agreement (substantially in the same
form of the surrendered Option Agreement) for those remaining Option
Shares.
<PAGE>
(c) In no event may this limited stock appreciation right be
exercised when there is not a positive spread between the Fair Market Value
of the Option Shares subject to the surrendered option and the aggregate
Exercise Price payable for such shares. This limited stock appreciation
right shall in all events terminate upon the expiration or sooner
termination of the option term and may not be assigned or transferred by
Optionee, except to the extent the Option is transferred in accordance with
the provisions of the Option Agreement.
2. For purposes of this Addendum, the following definitions shall be
in effect:
(a) A HOSTILE TAKE-OVER shall be deemed to occur upon the
acquisition, directly or indirectly, by any person or related group of
persons (other than the Corporation or a person that directly or indirectly
controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the Securities Exchange Act of 1934, as amended) of securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation's stockholders which the Board does not
recommend such stockholders to accept.
(b) The TAKE-OVER PRICE per share shall be deemed to be equal
to the greater of (A) the Fair Market Value per Option Share on the option
-------
surrender date or (B) the highest reported price per share of Common Stock
paid by the tender offeror in effecting the Hostile Take-Over. However, if
the surrendered Option is designated as an Incentive Option in the Grant
Notice, then the Take-Over Price shall not exceed the clause (A) price per
share.
IN WITNESS WHEREOF, Sequenom, Inc. has caused this Addendum to be
executed by its duly authorized officer.
SEQUENOM, INC.
By:
----------------------------
Title:
-------------------------
EFFECTIVE DATE:______________________________________
2
<PAGE>
EXHIBIT 99.3
Salary Investment Option Grant Election
---------------------------------------
<PAGE>
SEQUENOM, INC.
SALARY INVESTMENT OPTION GRANT ELECTION
---------------------------------------
I hereby elect to apply the following portion of the base salary otherwise
payable to me in cash for calendar year 200___ to the acquisition of a special
option grant under the Salary Investment Option Grant Program in effect under
the Company's 1999 Stock Incentive Plan (the "Plan").
$______________________ (I understand that the portion of my salary so
applied must not be LESS than $10,000 nor MORE than $50,000.)
I hereby acknowledge and agree that this election shall be irrevocable and
that the option to be granted pursuant to such election shall be subject to the
following terms:
1. The option will be granted on January ____, 200___.
2. The exercise price per share will be equal to one-third of the fair
market value per share of the Company's common stock (the closing selling price
per share on the Nasdaq National Market) on the option grant date.
3. The number of shares of common stock subject to the option will be
determined by dividing (i) the portion of my base salary for calendar year
200___ which I have elected to apply to the acquisition of the option by (ii)
two-thirds of the fair market value per share of the Company's common stock on
the option grant date.
4. The option will become exercisable in twelve (12) successive equal
monthly installments upon my completion of each calendar month of service with
the Company during calendar year 200___, with the first such installment to
become exercisable upon my continuation in the Company's service through
January 31, 200___.
5. The remaining terms of the option will be as set forth in the Salary
Reduction Option Grant Program in effect under the Plan.
Signature:____________________________
Dated:________________________________
<PAGE>
EXHIBIT 99.4
Notice of Grant Under Salary Investment Program
-----------------------------------------------
<PAGE>
SEQUENOM, INC.
NOTICE OF GRANT OF STOCK OPTION
-------------------------------
UNDER SALARY INVESTMENT OPTION GRANT PROGRAM
--------------------------------------------
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of Sequenom, Inc. (the "Corporation"):
Optionee:
-------- --------------------------------------------------------------
Grant Date:
---------- ------------------------------------------------------------
Exercise Price: $ per share
-------------- ----------------------------------------------
Number of Option Shares: shares
----------------------- ----------------------------------------
Expiration Date:
--------------- -------------------------------------------------------
Type of Option: Non-Statutory Stock Option
--------------
Exercise Schedule: The Option shall become exercisable for the Option
-----------------
Shares in a series of twelve (12) successive equal monthly installments upon
the Optionee's completion of each calendar month of Service during calendar
year 200____, with the first such installment to become exercisable upon
Optionee's continuation in Service through January 31, 200___. In no event
shall the Option become exercisable for any additional Option Shares after
Optionee's cessation of Service.
Optionee understands and agrees that the Option is granted subject to and in
accordance with the terms of the Salary Investment Option Grant Program under
the Sequenom, Inc. 1999 Stock Incentive Plan (the "Plan"). Optionee further
agrees to be bound by the terms of the Plan and the terms of the Option as set
forth in the Salary Investment Stock Option Agreement attached hereto as
Exhibit A. Optionee hereby acknowledges the receipt of a copy of the official
- ---------
prospectus for the Plan in the form attached hereto as Exhibit B. A copy of the
--------
Plan is available upon request made to the Corporate Secretary at the
Corporation's principal offices.
At Will Employment. Nothing in this Notice or in the attached Stock Option
------------------
Agreement or in the Plan shall confer upon Optionee any right to continue in
Service for any period of specific duration or interfere with or otherwise
restrict in any way the rights of the Corporation (or any Parent or Subsidiary
employing or retaining Optionee) or of Optionee, which rights are hereby
expressly reserved by each, to terminate Optionee's Service at any time for any
reason, with or without cause.
<PAGE>
Definitions. All capitalized terms in this Notice shall have the meaning
-----------
assigned to them in this Notice or in the attached Salary Investment Stock
Option Agreement.
DATED:___________________, 200___
SEQUENOM, INC.
By:___________________________
Title:________________________
______________________________
OPTIONEE
Address:______________________
______________________________
ATTACHMENTS
- -----------
Exhibit A - Salary Investment Stock Option Agreement
EXHIBIT B - Plan Summary and Prospectus
2
<PAGE>
EXHIBIT A
---------
SALARY INVESTMENT STOCK OPTION AGREEMENT
----------------------------------------
<PAGE>
EXHIBIT B
---------
1999 STOCK INCENTIVE PLAN
-------------------------
<PAGE>
EXHIBIT 99.5
Salary Investment Stock Option Agreement
----------------------------------------
<PAGE>
SEQUENOM, INC.
SALARY INVESTMENT STOCK OPTION AGREEMENT
----------------------------------------
RECITALS
- --------
A. The Corporation has implemented a special Salary Investment Option
Grant Program under the Plan pursuant to which selected employees may, by prior
irrevocable election, apply a portion of their base salary each year to the
acquisition of a special stock option grant.
B. Optionee has made the requisite election to apply a portion of his or
her base salary to the acquisition of the special option, and this Agreement is
executed pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the Corporation's grant of such special option to Optionee.
C. All capitalized terms in this Agreement shall have the meaning assigned
to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee, as of
---------------
the Grant Date, a Non-Statutory Stock Option to purchase up to the number of
Option Shares specified in the Grant Notice. The Option Shares shall be
purchasable from time to time during the option term specified in Paragraph 2 at
the Exercise Price.
2. OPTION TERM. This option shall have a term of ten (10) years
-----------
measured from the Grant Date and shall accordingly expire at the close of
business on the Expiration Date, unless sooner terminated in accordance with
Paragraph 5, 6 or 8.
3. LIMITED TRANSFERABILITY.
-----------------------
(a) This option may be assigned in whole or in part during
Optionee's lifetime to one or more members of the Optionee's immediate family or
to a trust established for the exclusive benefit of one or more such family
members or to Optionee's former spouse, to the extent such assignment is in
connection with the Optionee's estate plan or pursuant to a domestic relations
order. The assigned portion shall be exercisable only by the person or persons
who acquire a proprietary interest in the option pursuant to such assignment.
The terms applicable to the assigned portion shall be the same as those in
effect for this option immediately prior to such assignment.
(b) Should the Optionee die while holding this option, then this
option shall be transferred in accordance with Optionee's will or the laws of
inheritance. However, Optionee may designate one or more persons as the
beneficiary or beneficiaries of this option, and this option shall, in
accordance with such designation, automatically be transferred to such
<PAGE>
beneficiary or beneficiaries upon the Optionee's death while holding this
option. Such beneficiary or beneficiaries shall take the transferred option
subject to all the terms and conditions of this Agreement, including (without
limitation) the limited time period during which this option may, pursuant to
Paragraph 5, be exercised following Optionee's death.
4. DATES OF EXERCISE. This option shall become exercisable for the
-----------------
Option Shares in a series of successive equal monthly installments as specified
in the Grant Notice. As the option becomes exercisable for one or more of those
installments, the installments shall accumulate, and the option shall remain
exercisable for the accumulated installments until the Expiration Date or sooner
termination of the option term under Paragraph 5, 6 or 8.
5. CESSATION OF SERVICE. The option term specified in Paragraph 2
--------------------
shall terminate (and this option shall cease to be outstanding) prior to the
Expiration Date should any of the following provisions become applicable:
(i) Should Optionee cease to remain in Service for any
reason other than Misconduct while this option is outstanding, then period
during which this option may be exercised shall be reduced to a three (3)-
year period measured from the date of such cessation of Service, but in no
event shall this option be exercisable at any time after the Expiration
Date.
(ii) Should Optionee die while holding this option,
then the personal representative of Optionee's estate or the person or
persons to whom the option is transferred pursuant to Optionee's will or
the laws of inheritance shall have the right to exercise this option.
However, if Optionee has designated one or more beneficiaries of this
option, then those persons shall have the exclusive right to exercise this
option following Optionee's death. Any such right to exercise this option
shall lapse, and this option shall cease to be outstanding, upon the
earlier of (i) the expiration of the three (3)-year period measured from
-------
the date of Optionee's cessation of Service or (ii) the Expiration Date.
(iii) During the applicable post-Service exercise period,
this option may not be exercised in the aggregate for more than the number
of Option Shares for which the option is exercisable at the time of
Optionee's cessation of Service. Upon the expiration of such limited
exercise period or (if earlier) upon the Expiration Date, this option shall
terminate and cease to be outstanding for any exercisable Option Shares for
which the option has not been exercised. However, this option shall
immediately, upon Optionee's cessation of Service for any reason, terminate
and cease to be outstanding with respect to any and all Option Shares for
which the option is not otherwise at that time exercisable.
(iv) Should Optionee's Service be terminated for
Misconduct or should Optionee otherwise engage in Misconduct while this
option is outstanding, then this option shall terminate immediately and
cease to remain outstanding.
2
<PAGE>
6. CORPORATE TRANSACTION.
---------------------
(a) This option, to the extent outstanding at the time of a
Corporate Transaction but not otherwise fully exercisable for all the Option
Shares, shall automatically accelerate so that this option shall, immediately
prior to the effective date of such Corporate Transaction, become exercisable
for all the Option Shares at the time subject to this option and may be
exercised for any or all of those Option Shares as fully vested shares of Common
Stock. Immediately following such Corporate Transaction, this option shall
terminate and cease to be outstanding, except to the extent assumed by the
successor corporation (or parent thereof).
(b) To the extent assumed by the successor corporation (or parent
thereof) in connection with such Corporate Transaction, this option shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
to the number and class of securities which would have been issuable to Optionee
in consummation of such Corporate Transaction had the option been exercised
immediately prior to such Corporate Transaction, and appropriate adjustments
shall also be made to the Exercise P rice, provided the aggregate Exercise Price
--------
shall remain the same. To the extent the actual holders of the Corporation's
outstanding Common Stock receive cash consideration for their Common Stock in
consummation of the Corporate Transaction, the successor corporation may, in
connection with the assumption of this option, substitute one or more shares of
its own common stock with a fair market value equivalent to the cash
consideration paid per share of Common Stock in such Corporate Transaction. This
option, as so assumed, shall remain fully exercisable for all the Option Shares
subject to such option until the earliest to occur of (i) the expiration of the
--------
three (3)-year period measured from the date of Optionee's cessation of Service,
(ii) the specified Expiration Date, (iii) the cash-out of this option pursuant
to the provisions of Paragraph 8 or (iv) the sooner termination of this option
under Paragraph 5.
(c) This Agreement shall not in any way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
7. CHANGE IN CONTROL.
-----------------
(a) This option, to the extent outstanding at the time of a
Change of Control but not otherwise fully exercisable for all the Option Shares,
shall automatically accelerate so that this option shall, immediately prior to
the effective date of such Change in Control, become exercisable for all the
Option Shares at the time subject to this option and may be exercised for any or
all of those Option Shares as fully vested shares of Common Stock.
(b) The option shall remain exercisable for such fully vested
Option Shares until the earliest to occur of (i) the expiration of the three
--------
(3)-year period measured from the date of Optionee's cessation of Service, (ii)
the specified Expiration Date, (iii) the termination of this option in
connection with a Corporate Transaction, (iv) the cash-out of this option
pursuant to the provisions of Paragraph 8 or (v) the sooner termination of this
option under Paragraph 5.
3
<PAGE>
8. HOSTILE TAKE-OVER. Optionee is hereby granted a limited stock
-----------------
appreciation right exercisable upon the following terms and conditions:
(a) Optionee shall have the unconditional right, exercisable at
any time during the thirty (30)-day period immediately following a Hostile Take-
Over, to surrender this option to the Corporation. In return for the surrendered
option, Optionee shall receive a cash distribution from the Corporation in an
amount equal to the excess of (A) the Take-Over Price of the shares of Common
Stock which are at the time subject to the surrendered option (whether or not
the option is otherwise at that time exercisable for those Option Shares) over
(B) the aggregate Exercise Price payable for such shares.
(b) To exercise this limited stock appreciation right, Optionee
must, during the applicable thirty (30)-day exercise period, provide the
Corporation with written notice of the option surrender in which there is
specified the number of Option Shares as to which the option is being
surrendered. Such notice must be accompanied by the return of Optionee's copy of
this Agreement, together with any written amendments to such Agreement. The cash
distribution shall be paid to Optionee within five (5) business days following
such delivery date. The exercise of the limited stock appreciation right in
accordance with the terms of this Paragraph 8 is hereby pre-approved by the Plan
Administrator in advance of such exercise, and no further approval of the Plan
Administrator or the Board shall be required at the time of the actual option
surrender and cash distribution. Upon receipt of such cash distribution, this
option shall be cancelled with respect to the Option Shares for which the option
has been surrendered, and Optionee shall cease to have any further right to
acquire those Option Shares under this Agreement. The option shall, however,
remain outstanding for the balance of the Option Shares (if any) in accordance
with the terms of this Agreement, and the Corporation shall issue a replacement
stock option agreement (substantially in the same form as this Agreement) for
those remaining Option Shares.
(c) In no event may this limited stock appreciation right be
exercised when there is not a positive spread between the Fair Market Value of
the Option Shares subject to the surrendered option and the aggregate Exercise
Price payable for such shares. This limited stock appreciation right shall in
all events terminate upon the expiration or sooner termination of the option
term and may not be assigned or transferred by Optionee, except to the extent
the option is transferred in accordance with the provisions of this Agreement.
9. STOCKHOLDER RIGHTS. The holder of this option shall not have any
------------------
stockholder rights with respect to the Option Shares until such person shall
have exercised the option, paid the Exercise Price and become a holder of record
of the purchased shares.
10. ADJUSTMENT IN OPTION SHARES. Should any change be made to the
---------------------------
Common Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the number and/or
class of securities subject to this option and (ii) the Exercise Price in order
to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
4
<PAGE>
11. MANNER OF EXERCISING OPTION.
---------------------------
(a) In order to exercise this option with respect to all or any
part of the Option Shares for which this option is at the time exercisable,
Optionee (or any other person or persons exercising the option) must take the
following actions:
(i) Execute and deliver to the Corporation a Notice of
Exercise for the number of Option Shares for which the option is exercised.
(ii) Pay the aggregate Exercise Price for the purchased
shares in one or more of the following forms:
(A) cash or check made payable to the Corporation;
(B) shares of Common Stock held by Optionee (or any
other person or persons exercising the option) for the requisite
period necessary to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market Value on the
Exercise Date; or
(C) through a special sale and remittance procedure
pursuant to which Optionee (or any other person or persons exercising
the option) shall concurrently provide irrevocable instructions (I) to
a Corporation-designated brokerage firm to effect the immediate sale
of the purchased shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds to cover
the aggregate Exercise Price payable for the purchased shares plus all
applicable Federal, state and local income and employment taxes
required to be withheld by the Corporation by reason of such exercise
and (II) to the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm in order to complete
the sale.
Except to the extent the sale and remittance procedure is utilized
in connection with the option exercise, payment of the Exercise Price must
accompany the Notice of Exercise.
(iii) Furnish to the Corporation appropriate documentation
that the person or persons exercising the option (if other than Optionee)
have the right to exercise this option.
(iv) Make appropriate arrangements with the Corporation
(or Parent or Subsidiary employing or retaining Optionee) for the
satisfaction of all Federal, state and local income and employment tax
withholding requirements applicable to the option exercise.
5
<PAGE>
(b) As soon as practical after the Exercise Date, the Corporation
shall issue to or on behalf of Optionee (or any other person or persons
exercising this option) a certificate for the purchased Option Shares.
(c) In no event may this option be exercised for any fractional
shares.
12. COMPLIANCE WITH LAWS AND REGULATIONS.
------------------------------------
(a) The exercise of this option and the issuance of the Option
Shares upon such exercise shall be subject to compliance by the Corporation and
Optionee with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock may be listed for trading at the time of
such exercise and issuance.
(b) The inability of the Corporation to obtain approval from any
regulatory body having authority deemed by the Corporation to be necessary to
the lawful issuance and sale of any Common Stock pursuant to this option shall
relieve the Corporation of any liability with respect to the non-issuance or
sale of the Common Stock as to which such approval shall not have been obtained.
The Corporation, however, shall use its best efforts to obtain all such
approvals.
13. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided in
----------------------
Paragraph 3, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the Corporation and its successors and assigns and Optionee,
Optionee's assigns, the legal representatives, heirs and legatees of Optionee's
estate and any beneficiaries of this option designated by Optionee.
14. NOTICES. Any notice required to be given or delivered to the
-------
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee at
the address indicated below Optionee's signature line on the Grant Notice. All
notices shall be deemed effective upon personal delivery or upon deposit in the
U.S. mail, postage prepaid and properly addressed to the party to be notified.
15. CONSTRUCTION. This Agreement and the option evidenced hereby are
------------
made and pursuant to the Plan and are in all respects limited by and subject to
the terms of the Plan. All decisions of the Plan Administrator with respect to
any question or issue arising under the Plan or this Agreement shall be
conclusive and binding on all persons having an interest in this option.
16. GOVERNING LAW. The interpretation, performance and enforcement of
-------------
this Agreement shall be governed by the laws of the State of California without
resort to that State's conflict-of-laws rules.
6
<PAGE>
17. EXCESS SHARES. If the Option Shares covered by this Agreement
-------------
exceed, as of the Grant Date, the number of shares of Common Stock which may
without stockholder approval be issued under the Plan, then this option shall be
void with respect to such excess shares, unless stockholder approval of an
amendment sufficiently increasing the number of shares of Common Stock issuable
under the Plan is obtained in accordance with the provisions of the Plan.
7
<PAGE>
APPENDIX
--------
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Salary Investment Stock Option
---------
Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
-----
C. CHANGE IN CONTROL shall mean a change in ownership or control of the
-----------------
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of
securities possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders,
or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (i) have been
Board members continuously since the beginning of such period or (ii) have
been elected or nominated for election as Board members during such period
by at least a majority of the Board members described in clause (i) who
were still in office at the time the Board approved such election or
nomination.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. COMMON STOCK shall mean the Corporation's common stock.
------------
F. CORPORATE TRANSACTION shall mean either of the following stockholder-
---------------------
approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation or
dissolution of the Corporation.
A-1
<PAGE>
G. CORPORATION shall mean Sequenom, Inc., a Delaware corporation, and any
-----------
successor corporation to all or substantially all of the assets or voting stock
of Sequenom, Inc. which shall by appropriate action adopt the Plan.
H. EMPLOYEE shall mean an individual who is in the employ of the
--------
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
I. EXERCISE DATE shall mean the date on which the option shall have been
-------------
exercised in accordance with Paragraph 11 of the Agreement.
J. EXERCISE PRICE shall mean the exercise price per share as specified in
--------------
the Grant Notice.
K. EXPIRATION DATE shall mean the date on which the option expires as
---------------
specified in the Grant Notice.
L. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
-----------------
be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be closing selling price
per share of Common Stock on the date in question, as such price is
reported by the National Association of Securities Dealers on the Nasdaq
National Market and published in The Wall Street Journal. If there is no
-----------------------
closing selling price quoted for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question on the Stock Exchange
determined by the Plan Administrator to be the primary market for the
Common Stock, as such price is officially quoted in the composite tape of
transactions on such exchange and published in The Wall Street Journal. If
-----------------------
there is no closing selling price quoted for the Common Stock on the date
in question, then the Fair Market Value shall be the closing selling price
on the last preceding date for which such quotation exists.
M. GRANT DATE shall mean the date of grant of the option as specified in
----------
the Grant Notice.
N. GRANT NOTICE shall mean the Notice of Grant of Stock Option under the
------------
Salary Investment Grant Program accompanying the Agreement, pursuant to which
Optionee has been informed of the basic terms of the option evidenced hereby.
A-2
<PAGE>
O. HOSTILE TAKE-OVER shall mean the acquisition, directly or indirectly,
-----------------
by any person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or is under
common control with, the Corporation) of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of
securities possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities pursuant to a tender or
exchange offer made directly to the Corporation's stockholders which the Board
does not recommend such stockholders to accept.
P. MISCONDUCT shall mean the commission of any act of fraud, embezzlement
----------
or dishonesty by Optionee, any unauthorized use or disclosure by Optionee of
confidential information or trade secrets of the Corporation (or any Parent or
Subsidiary), or any other intentional misconduct by Optionee adversely affecting
the business or affairs of the Corporation (or any Parent or Subsidiary) in a
material manner. The foregoing definition shall not be deemed to be inclusive of
all the acts or omissions which the Corporation (or any Parent or Subsidiary)
may consider as grounds for the dismissal or discharge of Optionee or any other
individual in the Service of the Coproraiton (or any Parent or Subsidiary).
Q. NON-STATUTORY STOCK OPTION shall mean an option not intended to satisfy
--------------------------
the requirements of Code Section 422.
R. NOTICE OF EXERCISE shall mean the written notice of the option exercise
------------------
on the form provided by the Corporation for such purpose.
S. OPTION SHARES shall mean the number of shares of Common Stock subject
-------------
to the option as specified in the Grant Notice.
T. OPTIONEE shall mean the person to whom the option is granted as
--------
specified in the Grant Notice.
U. PARENT shall mean any corporation (other than the Corporation) in an
------
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
V. PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
----
W. PLAN ADMINISTRATOR shall mean either the Board or a committee of Board
------------------
members, to the extent the committee is at the time responsible for the
administration of the Plan.
X. SERVICE shall mean the Optionee's performance of services for the
-------
Corporation (or any Parent or Subsidiary) in the capacity of an Employee, a non-
employee member of the board of directors or an independent consultant.
A-3
<PAGE>
Y. STOCK EXCHANGE shall mean the American Stock Exchange or the New York
--------------
Stock Exchange.
Z. SUBSIDIARY shall mean any corporation (other than the Corporation) in
----------
an unbroken chain of corporations beginning with the Corporation, provided each
corporation (other than the last corporation) in the unbroken chain owns, at the
time of the determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
AA. TAKE-OVER PRICE per share shall mean the greater of (A) the Fair Market
--------------- -------
Value per Option Share on the option surrender date under Paragraph 8 or (B) the
highest reported price per share of Common Stock paid by the tender offeror in
effecting the Hostile Take-Over.
A-4
<PAGE>
EXHIBIT 99.6
Stock Issuance Agreement
------------------------
<PAGE>
SEQUENOM, INC.
STOCK ISSUANCE AGREEMENT
------------------------
AGREEMENT made this ___ day of _____________ ___________, by and between
Sequenom, Inc., a Delaware corporation, and ____________________, a Participant
in the Corporation's 1999 Stock Incentive Plan.
All capitalized terms in this Agreement shall have the meaning assigned to
them in this Agreement or in the attached Appendix.
A. PURCHASE OF SHARES
1. PURCHASE. Participant hereby purchases shares of Common Stock (the
"Purchased Shares") pursuant to the provisions of the Stock Issuance Program at
the purchase price of $______ per share (the "Purchase Price").
2. PAYMENT. Concurrently with the delivery of this Agreement to the
Corporation, Participant shall pay the Purchase Price for the Purchased Shares
in cash or check payable to the Corporation and shall deliver a duly executed
blank Assignment Separate from Certificate (in the form attached hereto as
Exhibit I) with respect to the Purchased Shares.
3. STOCKHOLDER RIGHTS. Until such time as the Corporation exercises the
Repurchase Right, Participant (or any successor in interest) shall have all the
rights of a stockholder (including voting, dividend and liquidation rights) with
respect to the Purchased Shares, subject, however, to the transfer restrictions
of this Agreement.
4. ESCROW. The Corporation shall have the right to hold the Purchased
Shares in escrow until those shares have vested in accordance with the Vesting
Schedule.
5. COMPLIANCE WITH LAW. Under no circumstances shall shares of Common Stock
or other assets be issued or delivered to Participant pursuant to the provisions
of this Agreement unless, in the opinion of counsel for the Corporation or its
successors, there shall have been compliance with all applicable requirements of
Federal and state securities laws, all applicable listing requirements of any
stock exchange (or the Nasdaq National Market, if applicable) on which the
Common Stock is at the time listed for trading and all other requirements of law
or of any regulatory bodies having jurisdiction over such issuance and delivery.
B. TRANSFER RESTRICTIONS
1. RESTRICTION ON TRANSFER. Except for any Permitted Transfer, Participant
shall not transfer, assign, encumber or otherwise dispose of any of the
Purchased Shares which are subject to the Repurchase Right.
<PAGE>
2. RESTRICTIVE LEGEND. The stock certificate for the Purchased Shares shall
be endorsed with the following restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE UNVESTED AND
SUBJECT TO CERTAIN REPURCHASE RIGHTS GRANTED TO THE CORPORATION AND
ACCORDINGLY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN
ANY MANNER DISPOSED OF EXCEPT IN CONFORMITY WITH THE TERMS OF A WRITTEN
AGREEMENT DATED ____________, ______ BETWEEN THE CORPORATION AND THE
REGISTERED HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE
SHARES). A COPY OF SUCH AGREEMENT IS MAINTAINED AT THE CORPORATION'S
PRINCIPAL CORPORATE OFFICES."
3. TRANSFEREE OBLIGATIONS. Each person (other than the Corporation) to whom
the Purchased Shares are transferred by means of a Permitted Transfer must, as a
condition precedent to the validity of such transfer, acknowledge in writing to
the Corporation that such person is bound by the provisions of this Agreement
and that the transferred shares are subject to the Repurchase Right to the same
extent such shares would be so subject if retained by Participant.
C. REPURCHASE RIGHT
1. GRANT. The Corporation is hereby granted the right (the "Repurchase
Right"), exercisable at any time during the ninety (90)-day period following the
date Participant ceases for any reason to remain in Service, to repurchase at
the Purchase Price any or all of the Purchased Shares in which Participant is
not, at the time of his or her cessation of Service, vested in accordance with
the Vesting Schedule set forth in Paragraph C.3 of this Agreement or the special
vesting acceleration provisions of Paragraph C.5 of this Agreement (such shares
to be hereinafter referred to as the "Unvested Shares").
2. EXERCISE OF THE REPURCHASE RIGHT. The Repurchase Right shall be
exercisable by written notice delivered to each Owner of the Unvested Shares
prior to the expiration of the ninety (90)-day exercise period. The notice shall
indicate the number of Unvested Shares to be repurchased and the date on which
the repurchase is to be effected, such date to be not more than thirty (30) days
after the date of such notice. The certificates representing the Unvested Shares
to be repurchased shall be delivered to the Corporation on the closing date
specified for the repurchase. Concurrently with the receipt of such stock
certificates, the Corporation shall pay to Owner, in cash or cash equivalent
(including the cancellation of any purchase-money indebtedness), an amount equal
to the Purchase Price previously paid for the Unvested Shares to be repurchased
from Owner.
2
<PAGE>
3. TERMINATION OF THE REPURCHASE RIGHT. The Repurchase Right shall
terminate with respect to any Unvested Shares for which it is not timely
exercised under Paragraph C.2. In addition, the Repurchase Right shall terminate
and cease to be exercisable with respect to any and all Purchased Shares in
which Participant vests in accordance with the following Vesting Schedule:
(i) Upon Participant's completion of one (1) year of Service measured
from ______________, _______, Participant shall acquire a vested interest
in, and the Repurchase Right shall lapse with respect to, twenty-five
percent (25%) of the Purchased Shares.
(ii) Participant shall acquire a vested interest in, and the
Repurchase Right shall lapse with respect to, the remaining Purchased
Shares in a series of thirty six (36) successive equal monthly installments
upon Participant's completion of each additional month of Service over the
thirty-six (36)-month period measured from the initial vesting date under
subparagraph (i) above.
4. RECAPITALIZATION. Any new, substituted or additional securities or other
property (including cash paid other than as a regular cash dividend) which is by
reason of any Recapitalization distributed with respect to the Purchased Shares
shall be immediately subject to the Repurchase Right and any escrow requirements
hereunder, but only to the extent the Purchased Shares are at the time covered
by such right or escrow requirements. Appropriate adjustments to reflect such
distribution shall be made to the number and/or class of securities subject to
this Agreement and to the price per share to be paid upon the exercise of the
Repurchase Right in order to reflect the effect of any such Recapitalization
upon the Corporation's capital structure; provided, however, that the aggregate
purchase price shall remain the same.
5. CORPORATE TRANSACTION.
(a) Immediately prior to the consummation of any Corporate Transaction, the
Repurchase Right shall automatically lapse in its entirety and the Purchased
Shares shall vest in full, except to the extent the Repurchase Right is to be
assigned to the successor corporation (or parent thereof) in connection with the
Corporate Transaction.
(b) To the extent the Repurchase Right remains in effect following a
Corporate Transaction, such right shall apply to the new capital stock or other
property (including any cash payments) received in exchange for the Purchased
Shares in consummation of the Corporate Transaction, but only to the extent the
Purchased Shares are at the time covered by such right. Appropriate adjustments
shall be made to the price per share payable upon exercise of the Repurchase
Right to reflect the effect of the Corporate Transaction upon the Corporation's
capital structure; provided, however, that the aggregate purchase price shall
remain the same. The new securities or other property (including cash payments)
issued or
3
<PAGE>
distributed with respect to the Purchased Shares in consummation of the
Corporate Transaction shall immediately be deposited in escrow with the
Corporation (or the successor entity) and shall not be released from escrow
until Participant vests in such securities or other property in accordance with
the same Vesting Schedule in effect for the Purchased Shares.
D. SPECIAL TAX ELECTION
1. SECTION 83(b) ELECTION. Under Code Section 83, the excess of the fair
market value of the Purchased Shares on the date any forfeiture restrictions
applicable to such shares lapse over the Purchase Price paid for such shares
will be reportable as ordinary income on the lapse date. For this purpose, the
term "forfeiture restrictions" includes the right of the Corporation to
repurchase the Purchased Shares pursuant to the Repurchase Right. Participant
may elect under Code Section 83(b) to be taxed at the time the Purchased Shares
are acquired, rather than when and as such Purchased Shares cease to be subject
to such forfeiture restrictions. Such election must be filed with the Internal
Revenue Service within thirty (30) days after the date of this Agreement. Even
if the fair market value of the Purchased Shares on the date of this Agreement
equals the Purchase Price paid (and thus no tax is payable), the election must
be made to avoid adverse tax consequences in the future. THE FORM FOR MAKING
THIS ELECTION IS ATTACHED AS EXHIBIT II HERETO. PARTICIPANT UNDERSTANDS THAT
FAILURE TO MAKE THIS FILING WITHIN THE APPLICABLE THIRTY (30)-DAY PERIOD WILL
RESULT IN THE RECOGNITION OF ORDINARY INCOME AS THE FORFEITURE RESTRICTIONS
LAPSE.
2. FILING RESPONSIBILITY. PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT'S
SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A TIMELY ELECTION UNDER
CODE SECTION 83(b), EVEN IF PARTICIPANT REQUESTS THE CORPORATION OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON HIS OR HER BEHALF.
E. GENERAL PROVISIONS
1. ASSIGNMENT. The Corporation may assign the Repurchase Right to any
person or entity selected by the Board, including (without limitation) one or
more stockholders of the Corporation.
2. AT WILL EMPLOYMENT. Nothing in this Agreement or in the Plan shall
confer upon Participant any right to continue in Service for any period of
specific duration or interfere with or otherwise restrict in any way the rights
of the Corporation (or any Parent or Subsidiary employing or retaining
Participant) or of Participant, which rights are hereby expressly reserved by
each, to terminate Participant's Service at any time for any reason, with or
without cause.
4
<PAGE>
3. NOTICES. Any notice required to be given under this Agreement shall be
in writing and shall be deemed effective upon personal delivery or upon deposit
in the U.S. mail, registered or certified, postage prepaid and properly
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this paragraph
to all other parties to this Agreement.
4. NO WAIVER. The failure of the Corporation in any instance to exercise
the Repurchase Right shall not constitute a waiver of any other repurchase
rights that may subsequently arise under the provisions of this Agreement or any
other agreement between the Corporation and Participant. No waiver of any breach
or condition of this Agreement shall be deemed to be a waiver of any other or
subsequent breach or condition, whether of like or different nature.
5. CANCELLATION OF SHARES. If the Corporation shall make available, at the
time and place and in the amount and form provided in this Agreement, the
consideration for the Purchased Shares to be repurchased in accordance with the
provisions of this Agreement, then from and after such time, the person from
whom such shares are to be repurchased shall no longer have any rights as a
holder of such shares (other than the right to receive payment of such
consideration in accordance with this Agreement). Such shares shall be deemed
purchased in accordance with the applicable provisions hereof, and the
Corporation shall be deemed the owner and holder of such shares, whether or not
the certificates therefor have been delivered as required by this Agreement.
6. PARTICIPANT UNDERTAKING. Participant hereby agrees to take whatever
additional action and execute whatever additional documents the Corporation may
deem necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on either Participant or the Purchased
Shares pursuant to the provisions of this Agreement.
7. AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
This Agreement is made pursuant to the provisions of the Plan and shall in all
respects be construed in conformity with the terms of the Plan.
8. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without resort to that
State's conflict-of-laws rules.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
5
<PAGE>
10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure to
the benefit of, and be binding upon, the Corporation and its successors and
assigns and upon Participant, Participant's assigns and the legal
representatives, heirs and legatees of Participant's estate, whether or not any
such person shall have become a party to this Agreement and have agreed in
writing to join herein and be bound by the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first indicated above.
SEQUENOM, INC.
By:
---------------------------------------
Title:
------------------------------------
Address:
----------------------------------
------------------------------------------
PARTICIPANT
------------------------------------------
Signature
Address:
----------------------------------
------------------------------------------
6
<PAGE>
SPOUSAL ACKNOWLEDGMENT
The undersigned spouse of the Participant has read and hereby
approves the foregoing Stock Issuance Agreement. In consideration of the
Corporation's granting the Participant the right to acquire the Purchased Shares
in accordance with the terms of such Agreement, the undersigned hereby agrees to
be irrevocably bound by all the terms of such Agreement, including (without
limitation) the right of the Corporation (or its assigns) to purchase any
Purchased Shares in which the Participant is not vested at the time of his or
her termination of Service.
-----------------------------------------
PARTICIPANT'S SPOUSE
Address:
---------------------------------
-----------------------------------------
<PAGE>
EXHIBIT I
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED hereby sell(s), assign(s) and transfer(s) unto Sequenom,
Inc. (the "Corporation"),____________________ (_____) shares of the Common Stock
of the Corporation standing in his or her name on the books of the Corporation
represented by Certificate No.____ herewith and do(es) hereby irrevocably
constitute and appoint ______________________________ Attorney to transfer the
said stock on the books of the Corporation with full power of substitution in
the premises.
Dated: _________________, _____.
Signature______________________________
Instruction: Please do not fill in any blanks other than the signature line.
Please sign exactly as you would like your name to appear on the issued stock
certificate. The purpose of this assignment is to enable the Corporation to
exercise the Repurchase Right without requiring additional signatures on the
part of Participant.
<PAGE>
EXHIBIT II
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident. No.:
(2) The property with respect to which the election is being made is___________
shares of the common stock of Sequenom, Inc.
(3) The property was issued on _________________, _________.
(4) The taxable year in which the election is being made is the calendar year
_________.
(5) The property is subject to a repurchase right pursuant to which the issuer
has the right to acquire the property at the original purchase price if for
any reason taxpayer's service with the issuer terminates. The issuer's
repurchase right will lapse in a series of annual and monthly installments
over a forty-eight (48)-month period ending on ___________________.
(6) The fair market value at the time of transfer (determined without regard to
any restriction other than a restriction which by its terms will never
lapse) is $____ per share.
(7) The amount paid for such property is $__________ per share.
(8) A copy of this statement was furnished to Sequenom, Inc. for whom taxpayer
rendered the services underlying the transfer of property.
(9) This statement is executed on ________________________, _______.
_____________________________________ _____________________________________
Spouse (if any) Taxpayer
This election must be filed with the Internal Revenue Service Center with which
taxpayer files his or her Federal income tax returns and must be made within
thirty (30) days after the execution date of the Stock Issuance Agreement. This
filing should be made by registered or certified mail, return receipt requested.
Participant must retain two (2) copies of the completed form for filing with his
or her Federal and state tax returns for the current tax year and an additional
copy for his or her records.
<PAGE>
APPENDIX
--------
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Stock Issuance Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
C. COMMON STOCK shall mean shares of the Corporation's common stock.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. CORPORATE TRANSACTION shall mean either of the following
stockholder-approved transactions:
(i) a merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Corporation's assets in
complete liquidation or dissolution of the Corporation.
F. CORPORATION shall mean Sequenom, Inc., a Delaware corporation, and any
successor corporation to all or substantially all of the assets or voting stock
of Sequenom, Inc.
G. OWNER shall mean Participant and all subsequent holders of the Purchased
Shares who derive their chain of ownership through a Permitted Transfer from
Participant.
H. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
I. PARTICIPANT shall mean the person to whom the Purchased Shares are
issued under the Stock Issuance Program.
J. PERMITTED TRANSFER shall mean (i) a gratuitous transfer of the Purchased
Shares, provided and only if Participant obtains the Corporation's prior written
consent to such transfer, (ii) a transfer of title to the Purchased Shares
effected pursuant to Participant's will or the laws of inheritance following
Participant's death or (iii) a transfer to the Corporation in pledge as security
for any purchase-money indebtedness incurred by Participant in connection with
the acquisition of the Purchased Shares.
A-1
<PAGE>
K. PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
L. PLAN ADMINISTRATOR shall mean either the Board or a committee of the
Board acting in its administrative capacity under the Plan.
M. PURCHASE PRICE shall have the meaning assigned to such term in Paragraph
A.1.
N. PURCHASED SHARES shall have the meaning assigned to such term in
Paragraph A.1.
O. RECAPITALIZATION shall mean any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the Corporation's outstanding Common Stock as a class without the
Corporation's receipt of consideration.
P. REPURCHASE RIGHT shall mean the right granted to the Corporation in
accordance with Article C.
Q. SERVICE shall mean the Participant's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an employee,
subject to the control and direction of the employer entity as to both the work
to be performed and the manner and method of performance, a non-employee member
of the board of directors or an independent consultant.
R. STOCK ISSUANCE PROGRAM shall mean the Stock Issuance Program under the
Plan.
S. SUBSIDIARY shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided each
corporation (other than the last corporation) in the unbroken chain owns, at the
time of the determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
T. VESTING SCHEDULE shall mean the vesting schedule specified in Paragraph
C.3, pursuant to which the Purchased Shares are to vest in a series of
installments over Participant's period of Service.
U. UNVESTED SHARES shall have the meaning assigned to such term in
Paragraph C.1.
A-2
<PAGE>
EXHIBIT 99.7
Addendum to Stock Issuance Agreement
------------------------------------
<PAGE>
ADDENDUM
TO
STOCK ISSUANCE AGREEMENT
The following provisions are hereby incorporated into, and are hereby made a
part of, that certain Stock Issuance Agreement (the "Issuance Agreement") by and
between Sequenom, Inc. (the "Corporation") and _________________________________
("Participant") evidencing the stock issuance made this day to Participant under
the terms of the Corporation's 1999 Stock Incentive Plan, and such provisions
are effective immediately. All capitalized terms in this Addendum, to the extent
not otherwise defined herein, shall have the meanings assigned to such terms in
the Issuance Agreement.
INVOLUNTARY TERMINATION FOLLOWING
CORPORATE TRANSACTION/CHANGE IN CONTROL
1. To the extent the Repurchase Right is assigned to the successor
corporation (or parent thereof) in connection with a Corporate Transaction, no
accelerated vesting of the Purchased Shares shall occur upon such Corporate
Transaction, and the Repurchase Right shall continue to remain in full force and
effect in accordance with the provisions of the Issuance Agreement. The
Participant shall, over Participant's period of Service following the Corporate
Transaction, continue to vest in the Purchased Shares in one or more
installments in accordance with the provisions of the Issuance Agreement.
2. No accelerated vesting of the Purchased Shares shall occur upon a Change
in Control, and the Repurchase Right shall continue to remain in full force and
effect in accordance with the provisions of the Issuance Agreement and shall be
assigned to any successor entity in the Change in Control transaction. The
Participant shall, over Participant's period of Service following the Change in
Control, continue to vest in the Purchased Shares in one or more installments in
accordance with the provisions of the Issuance Agreement.
3. Immediately upon an Involuntary Termination of Participant's Service
within eighteen (18) months following the Corporate Transaction or Change in
Control, the Repurchase Right shall terminate automatically, and all the
Purchased Shares shall vest in full at that time. In addition, the outstanding
balance of any escrow account maintained on Participant's behalf pursuant to
Paragraph C.5 of the Issuance Agreement shall immediately vest at the time of
such Involuntary Termination and shall be paid to the Participant promptly
thereafter.
4. For purposes of this Addendum, the following definitions shall be in
effect:
An INVOLUNTARY TERMINATION shall mean the termination of Participant's
Service by reason of:
<PAGE>
(i) Participant's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
(ii) Participant's voluntary resignation following (A) a change in
Participant's position with the Corporation (or Parent or Subsidiary
employing Participant) which materially reduces Participant's duties and
responsibilities or the level of management to which Participant reports,
(B) a reduction in Participant's level of compensation (including base
salary, fringe benefits and target bonus under any corporate performance
based bonus or incentive programs) by more than fifteen percent (15%) or (C)
a relocation of Participant's place of employment by more than fifty (50)
miles, provided and only if such change, reduction or relocation is effected
by the Corporation without Participant's consent.
A CHANGE IN CONTROL shall be deemed to occur in the event of a change in
ownership or control of the Corporation effected through either of the following
transactions:
(i) the acquisition, directly or indirectly, by any person or related
group of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the Securities Exchange Act of 1934, as amended) of securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation's stockholders, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been
elected or nominated for election as Board members during such period by at
least a majority of the Board members described in clause (A) who were
still in office at the time the Board approved such election or nomination.
MISCONDUCT shall mean the commission of any act of fraud, embezzlement or
dishonesty by the Participant, any unauthorized use or disclosure by the
Participant of confidential information or trade secrets of the Corporation (or
any Parent or Subsidiary), or any other intentional misconduct by the
Participant adversely affecting the business or affairs of the Corporation (or
any Parent or Subsidiary) in a material manner. The foregoing definition shall
not be deemed to be inclusive of all the acts or omissions which the Corporation
(or any Parent or Subsidiary) may consider as grounds for the dismissal or
discharge of the Participant or other person in the Service of the Corporation
(or any Parent or Subsidiary).
2
<PAGE>
IN WITNESS WHEREOF, Sequenom, Inc. has caused this Addendum to be executed
by its duly authorized officer, effective as of the Effective Date specified
below.
SEQUENOM, INC.
By:___________________________
Title:________________________
EFFECTIVE DATE:___________________________
3
<PAGE>
EXHIBIT 99.8
Notice of Grant Non-Employee Director - Initial Grant
-----------------------------------------------------
<PAGE>
INITIAL GRANT
SEQUENOM, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
----------------------------------------
AUTOMATIC STOCK OPTION
----------------------
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of Sequenom, Inc. (the "Corporation"):
Optionee:
-------- ------------------------------------------------------------
Grant Date:
---------- ----------------------------------------------------------
Exercise Price: $ per share
-------------- -------------------------------------------
Number of Option Shares: 15,000 shares of Common Stock
-----------------------
Expiration Date:
--------------- -----------------------------------------------------
Type of Option: Non-Statutory Stock Option
--------------
Date Exercisable: Immediately Exercisable
----------------
Vesting Schedule: The Option Shares shall initially be unvested and
----------------
subject to repurchase by the Corporation at the Exercise Price paid
per share. Optionee shall acquire a vested interest in, and the
Corporation's repurchase right shall accordingly lapse with respect
to, the Option Shares in a series of three (3) successive equal annual
installments upon Optionee's completion of each year of service as a
member of the Corporation's Board of Directors (the "Board") over the
three (3)-year period measured from the Grant Date. In no event shall
any additional Option Shares vest after Optionee's cessation of Board
service.
Optionee understands and agrees that the Option is granted subject to
and in accordance with the terms of the automatic option grant program under the
Sequenom, Inc. 1999 Stock Incentive Plan (the "Plan"). Optionee further agrees
to be bound by the terms of the Plan and the terms of the Option as set forth in
the Automatic Stock Option Agreement attached hereto as Exhibit A. Optionee
---------
hereby acknowledges receipt of a copy of the official prospectus for the Plan in
the form attached hereto as Exhibit B. A copy of the Plan is available upon
---------
request made to the Corporate Secretary at the Corporation's principal offices.
<PAGE>
REPURCHASE RIGHT. OPTIONEE HEREBY AGREES THAT ALL UNVESTED OPTION
----------------
SHARES ACQUIRED UPON THE EXERCISE OF THE OPTION SHALL BE SUBJECT TO A REPURCHASE
RIGHT EXERCISABLE BY THE CORPORATION AND ITS ASSIGNS. THE TERMS OF SUCH RIGHT
SHALL BE SPECIFIED IN A STOCK PURCHASE AGREEMENT, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CORPORATION, EXECUTED BY OPTIONEE AT THE TIME OF THE OPTION
EXERCISE.
No Impairment of Rights. Nothing in this Notice or the attached
-----------------------
Automatic Stock Option Agreement or in the Plan shall interfere with or
otherwise restrict in any way the rights of the Corporation and the
Corporation's stockholders to remove Optionee from the Board at any time in
accordance with the provisions of applicable law.
Definitions. All capitalized terms in this Notice shall have the
-----------
meaning assigned to them in this Notice or in the attached Automatic Stock
Option Agreement.
DATED: _________________, _______
SEQUENOM, INC.
By:____________________________
Title:_________________________
_______________________________
OPTIONEE
Address:_______________________
-------------------------------
ATTACHMENTS
- -----------
Exhibit A - Automatic Stock Option Agreement
Exhibit B - Plan Summary and Prospectus
2
<PAGE>
EXHIBIT A
---------
AUTOMATIC STOCK OPTION AGREEMENT
--------------------------------
<PAGE>
EXHIBIT B
---------
PLAN SUMMARY AND PROSPECTUS
---------------------------
<PAGE>
EXHIBIT 99.9
Notice of Grant Non-Employee Director - Annual Grant
----------------------------------------------------
<PAGE>
ANNUAL GRANT
SEQUENOM, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
----------------------------------------
AUTOMATIC STOCK OPTION
----------------------
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of Sequenom, Inc. (the "Corporation"):
Optionee:
-------- ------------------------------------------------------------
Grant Date:
---------- ----------------------------------------------------------
Exercise Price: $ per share
-------------- -------------------------------------------
Number of Option Shares: 3,000 shares of Common Stock
-----------------------
Expiration Date:
--------------- -----------------------------------------------------
Type of Option: Non-Statutory Stock Option
--------------
Date Exercisable: Immediately Exercisable
----------------
Vesting Schedule: The Option Shares shall initially be invested and
----------------
subject to repurchase by the Corporation at the Exercise Price paid
per Share. Optionee shall acquire a vested interest in, and the
Corporation's repurchase right shall accordingly lapse with respect
to, the option Shares upon Optionee's completion of one year of
service as a member of the Corporation's Board of Directors (the
"Board") measured from the Grant Date. In no event shall any Option
Shares vest after Optionee's cessation of Board service.
Optionee understands and agrees that the Option is granted subject to
and in accordance with the terms of the automatic option grant program under the
Sequenom, Inc. 1999 Stock Incentive Plan (the "Plan"). Optionee further agrees
to be bound by the terms of the Plan and the terms of the Option as set forth in
the Automatic Stock Option Agreement attached hereto as Exhibit A. Optionee
---------
hereby acknowledges receipt of a copy of the official prospectus for the Plan in
the form attached hereto as Exhibit B. A copy of the Plan is available upon
---------
request made to the Corporate Secretary at the Corporation's principal offices.
No Impairment of Rights. Nothing in this Notice or the attached
-----------------------
Automatic Stock Option Agreement or in the Plan shall interfere with or
otherwise restrict in any way the rights of the Corporation and the
Corporation's stockholders to remove Optionee from the Board at any time in
accordance with the provisions of applicable law.
<PAGE>
Definitions. All capitalized terms in this Notice shall have the
-----------
meaning assigned to them in this Notice or in the attached Automatic Stock
Option Agreement.
DATED: _________________, _______
SEQUENOM, INC.
By:
______________________________________
Title:
___________________________________
_________________________________________
OPTIONEE
Address:
_________________________________
_________________________________
ATTACHMENTS
- -----------
Exhibit A - Automatic Stock Option Agreement
Exhibit B - Plan Summary and Prospectus
2
<PAGE>
EXHIBIT A
---------
AUTOMATIC STOCK OPTION AGREEMENT
--------------------------------
<PAGE>
EXHIBIT B
---------
PLAN SUMMARY AND PROSPECTUS
---------------------------
<PAGE>
EXHIBIT 99.10
Automatic Stock Option Agreement
--------------------------------
<PAGE>
SEQUENOM, INC.
AUTOMATIC STOCK OPTION AGREEMENT
--------------------------------
RECITALS
- --------
A. The Corporation has implemented an automatic option grant program under
the Plan pursuant to which eligible non-employee members of the Board will
automatically receive special option grants at periodic intervals over their
period of Board service in order to provide such individuals with a meaningful
incentive to continue to serve as members of the Board.
B. Optionee is an eligible non-employee Board member, and this Agreement is
executed pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the automatic grant of an option to purchase shares of Common
Stock under the Plan.
C. All capitalized terms in this Agreement shall have the meaning assigned
to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee, as of the
---------------
Grant Date, a Non-Statutory Option to purchase up to the number of Option Shares
specified in the Grant Notice. The Option Shares shall be purchasable from time
to time during the option term specified in Paragraph 2 at the Exercise Price.
2. OPTION TERM. This option shall have a term of ten (10) years measured
-----------
from the Grant Date and shall accordingly expire at the close of business on the
Expiration Date, unless sooner terminated in accordance with Paragraph 5, 6 or
7.
3. LIMITED TRANSFERABILITY.
-----------------------
(a) This option may be assigned in whole or in part during Optionee's
lifetime to one or more members of Optionee's family or to a trust established
for the exclusive benefit of one or more such family members or to Optionee's
former spouse, to the extent such assignment is in connection with the
Optionee's estate plan or pursuant to a domestic relations order. The assigned
portion shall be exercisable only by the person or persons who acquire a
proprietary interest in the option pursuant to such assignment. The terms
applicable to the assigned portion shall be the same as those in effect for this
option immediately prior to such assignment.
(b) Should the Optionee die while holding this option, then this option
shall be transferred in accordance with Optionee's will or the laws of
inheritance. However, Optionee may designate one or more persons as the
beneficiary or beneficiaries of this option, and this option shall, in
accordance with such designation, automatically be transferred to such
<PAGE>
beneficiary or beneficiaries upon the Optionee's death while holding this
option. Such beneficiary or beneficiaries shall take the transferred option
subject to all the terms and conditions of this Agreement, including (without
limitation) the limited time period during which this option may, pursuant to
Paragraph 5, be exercised following Optionee's death.
4. EXERCISABILITY/VESTING.
----------------------
(a) This option shall be immediately exercisable for any or all of the
Option Shares, whether or not the Option Shares are at the time vested in
accordance with the Vesting Schedule, and shall remain so exercisable until the
Expiration Date or sooner termination of the option term under Paragraph 5, 6 or
7.
(b) Optionee shall, in accordance with the Vesting Schedule set forth in
the Grant Notice, vest in the Option Shares in one or more installments over his
or her period of Board service. Vesting in the Option Shares may be accelerated
pursuant to the provisions of Paragraph 5, 6 or 7. In no event, however, shall
any additional Option Shares vest following Optionee's cessation of service as a
Board member.
5. CESSATION OF BOARD SERVICE. Should Optionee's service as a Board member
--------------------------
cease while this option remains outstanding, then the option term specified in
Paragraph 2 shall terminate (and this option shall cease to be outstanding)
prior to the Expiration Date in accordance with the following provisions:
(a) Should Optionee cease to serve as a Board member for any reason (other
than death or Permanent Disability) while this option is outstanding, then the
period during which this option may be exercised shall be reduced to a twelve
(12)-month period measured from the date of such cessation of Board service, but
in no event shall this option be exercisable at any time after the Expiration
Date. During such limited period of exercisability, this option may not be
exercised in the aggregate for more than the number of Option Shares (if any) in
which Optionee is vested on the date of his or her cessation of Board service.
Upon the earlier of (i) the expiration of such twelve (12)-month period or (ii)
the specified Expiration Date, the option shall terminate and cease to be
exercisable with respect to any vested Option Shares for which the option has
not been exercised.
(b) Should Optionee die during the twelve (12)-month period following his
or her cessation of Board service and hold this option at the time of his or her
death, then the personal representative of Optionee's estate or the person or
persons to whom the option is transferred pursuant to Optionee's will or the
laws of inheritance or the designated beneficiary or beneficiaries of this
option (as the case may be) shall have the right to exercise this option for any
or all of the Option Shares in which Optionee is vested at the time of
Optionee's cessation of Board service (less any Option Shares purchased by
Optionee after such cessation of Board service but prior to death). Any such
right to exercise this option shall terminate, and this option shall accordingly
cease to be exercisable for such vested Option Shares, upon the earlier of (i)
-------
the expiration of the twelve (12)-month period measured from the date of
Optionee's cessation of Board service or (ii) the specified Expiration Date.
2
<PAGE>
(c) Should Optionee cease service as a Board member by reason of death or
Permanent Disability, then any Option Shares at the time subject to this option
but not otherwise vested shall vest in full so that this option may be exercised
for any or all of the Option Shares as fully vested shares of Common Stock at
any time prior to the earlier of (i) the expiration of the twelve (12)-month
-------
period measured from the date of Optionee's cessation of Board service or (ii)
the specified Expiration Date, whereupon this option shall terminate and cease
to be outstanding.
(d) Upon Optionee's cessation of Board service for any reason other than
death or Permanent Disability, this option shall immediately terminate and cease
to be outstanding with respect to any and all Option Shares in which Optionee is
not otherwise at that time vested in accordance with the normal Vesting Schedule
or the special vesting acceleration provisions of Paragraphs 6 and 7 below.
6. CORPORATE TRANSACTION.
---------------------
(a) In the event of a Corporate Transaction effected during Optionee's
period of Board service, any Option Shares at the time subject to this option
but not otherwise vested shall automatically vest so that this option shall,
immediately prior to the specified effective date for that Corporate
Transaction, become exercisable for all of the Option Shares as fully vested
shares of Common Stock and may be exercised for any or all of those vested
shares. Immediately following the consummation of the Corporate Transaction,
this option shall terminate and cease to be outstanding, except to the extent
assumed by the successor corporation or its parent company.
(b) If this option is assumed in connection with a Corporate Transaction,
then this option shall be appropriately adjusted, immediately after such
Corporate Transaction, to apply to the number and class of securities which
would have been issuable to Optionee in consummation of such Corporate
Transaction had the option been exercised immediately prior to such Corporate
Transaction, and appropriate adjustments shall also be made to the Exercise
Price, provided the aggregate Exercise Price shall remain the same. To the
--------
extent the actual holders of the Corporation's outstanding Common Stock receive
cash consideration for their Common Stock in consummation of the Corporate
Transaction, the successor corporation may, in connection with the assumption of
this option, substitute one or more shares of its own common stock with a fair
market value equivalent to the cash consideration paid per share of Common Stock
in such Corporate Transaction.
7. CHANGE IN CONTROL/HOSTILE TAKE-OVER.
-----------------------------------
(a) In the event of a Change in Control effected during Optionee's period
of Board service, any Option Shares at the time subject to this option but not
otherwise vested shall automatically vest so that this option shall, immediately
prior to the effective date of that Change in Control, become exercisable for
all of the Option Shares as fully vested shares of
3
<PAGE>
Common Stock and may be exercised for any or all of those vested shares. This
option shall remain exercisable for such fully vested Option Shares until the
earliest to occur of (i) the specified Expiration Date, (ii) the sooner
- --------
termination of this option in accordance with Paragraph 5 or 6 or (iii) the
surrender of this option under Paragraph 7(b).
(b) Optionee shall have an unconditional right, exercisable at any time
during the thirty (30)-day period immediately following the consummation of a
Hostile Take-Over to surrender this option to the Corporation in exchange for a
cash distribution from the Corporation in an amount equal to the excess of (i)
the Take-Over Price of the Option Shares at the time subject to the surrendered
option (whether or not those Option Shares are otherwise at the time vested)
over (ii) the aggregate Exercise Price payable for such shares. This Paragraph
7(b) limited stock appreciation right shall in all events terminate upon the
expiration or sooner termination of the option term and may not be assigned or
transferred by Optionee, except to the extent the option is transferred in
accordance with the provisions of this Agreement.
(c) To exercise the Paragraph 7(b) limited stock appreciation right,
Optionee must, during the applicable thirty (30)-day exercise period, provide
the Corporation with written notice of the option surrender in which there is
specified the number of Option Shares as to which the option is being
surrendered. Such notice must be accompanied by the return of Optionee's copy of
this Agreement, together with any written amendments to such Agreement. The cash
distribution shall be paid to Optionee within five (5) business days following
such delivery date. The exercise of such limited stock appreciation right in
accordance with the terms of this Paragraph 7 has been pre-approved pursuant to
the express provisions of the Automatic Option Grant Program, and neither the
approval of the Plan Administrator nor the consent of the Board shall be
required at the time of the actual option surrender and cash distribution. Upon
receipt of the cash distribution, this option shall be cancelled with respect to
the shares subject to the surrendered option (or the surrendered portion), and
Optionee shall cease to have any further right to acquire those Option Shares
under this Agreement. The option shall, however, remain outstanding for the
balance of the Option Shares (if any) in accordance with the terms and
provisions of this Agreement, and the Corporation shall accordingly issue a
replacement stock option agreement (substantially in the same form as this
Agreement) for those remaining Option Shares.
8. ADJUSTMENT IN OPTION SHARES. Should any change be made to the Common
---------------------------
Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the total number
and/or class of securities subject to this option and (ii) the Exercise Price in
order to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
9. STOCKHOLDER RIGHTS. The holder of this option shall not have any
------------------
stockholder rights with respect to the Option Shares until such person shall
have exercised the option, paid the Exercise Price and become a holder of record
of the purchased shares.
4
<PAGE>
10. MANNER OF EXERCISING OPTION.
---------------------------
(a) In order to exercise this option with respect to all or any part of the
Option Shares for which this option is at the time exercisable, Optionee (or any
other person or persons exercising the option) must take the following actions:
(i) To the extent the option is exercised for vested Option Shares,
execute and deliver to the Corporation a Notice of Exercise for the Option
Shares for which the option is exercised. To the extent this option is
exercised for unvested Option Shares, execute and deliver to the
Corporation a Purchase Agreement for those unvested Option Shares.
(ii) Pay the aggregate Exercise Price for the purchased shares in one
or more of the following forms:
(A) cash or check made payable to the Corporation,
(B) shares of Common Stock held by Optionee (or any other person
or persons exercising the option) for the requisite period necessary
to avoid a charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on the Exercise
Date, or
(C) to the extent the option is exercised for vested Option
Shares, through a special sale and remittance procedure pursuant to
which Optionee (or any other person or persons exercising the option)
shall concurrently provide irrevocable instructions (I) to a
Corporation-designated brokerage firm to effect the immediate sale of
the purchased shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds to cover
the aggregate Exercise Price payable for the purchased shares plus all
applicable Federal, state and local income and employment taxes
required to be withheld by the Corporation by reason of such exercise
and (II) to the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm in order to complete
the sale.
(iii) Furnish to the Corporation appropriate documentation that the
person or persons exercising the option (if other than Optionee) have the
right to exercise this option.
(b) Except to the extent the sale and remittance procedure is utilized in
connection with the option exercise, payment of the Exercise Price must
accompany the Notice of Exercise (or the Purchase Agreement) delivered to the
Corporation in connection with the option exercise.
5
<PAGE>
(c) As soon after the Exercise Date as practical, the Corporation shall
issue to or on behalf of Optionee (or any other person or persons exercising
this option) a certificate for the purchased Option Shares, with the appropriate
legends affixed thereto. To the extent any such Option Shares are unvested, the
certificates for those Option Shares shall be endorsed with an appropriate
legend evidencing the Corporation's repurchase rights and may be held in escrow
with the Corporation until such shares vest.
(d) In no event may this option be exercised for any fractional shares.
11. NO IMPAIRMENT OF RIGHTS. This Agreement shall not in any way affect the
-----------------------
right of the Corporation to adjust, reclassify, reorganize or otherwise make
changes in its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets. In
addition, this Agreement shall not in any way be construed or interpreted so as
to affect adversely or otherwise impair the right of the Corporation or the
stockholders to remove Optionee from the Board at any time in accordance with
the provisions of applicable law.
12. COMPLIANCE WITH LAWS AND REGULATIONS.
------------------------------------
(a) The exercise of this option and the issuance of the Option Shares upon
such exercise shall be subject to compliance by the Corporation and Optionee
with all applicable requirements of law relating thereto and with all applicable
regulations of any stock exchange (or the Nasdaq National Market, if applicable)
on which the Common Stock may be listed for trading at the time of such exercise
and issuance.
(b) The inability of the Corporation to obtain approval from any regulatory
body having authority deemed by the Corporation to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option shall relieve the
Corporation of any liability with respect to the non-issuance or sale of the
Common Stock as to which such approval shall not have been obtained. The
Corporation, however, shall use its best efforts to obtain all such approvals.
13. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided in
----------------------
Paragraph 3 or 6, the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns, the legal representatives, heirs and legatees of
Optionee's estate and any beneficiaries of this option designated by Optionee.
14. NOTICES. Any notice required to be given or delivered to the
-------
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee at
the address indicated below Optionee's signature line on the Grant Notice. All
notices shall be deemed effective upon personal delivery or upon deposit in the
U.S. mail, postage prepaid and properly addressed to the party to be notified.
6
<PAGE>
15. CONSTRUCTION. This Agreement and the option evidenced hereby are made
------------
and granted pursuant to the Plan and are in all respects limited by and subject
to the terms of the Plan.
16. GOVERNING LAW. The interpretation, performance and enforcement of this
-------------
Agreement shall be governed by the laws of the State of California without
resort to that State's conflict-of-laws rules.
7
<PAGE>
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify Sequenom, Inc. (the "Corporation") that I elect to purchase
_____________ shares of the Corporation's Common Stock (the "Purchased Shares")
at the option exercise price of $ per share (the "Exercise Price") pursuant to
that certain option (the "Option") granted to me under the Corporation's 1999
Stock Incentive Plan on _________________, ________.
Concurrently with the delivery of this Exercise Notice to the
Corporation, I shall hereby pay to the Corporation the Exercise Price for the
Purchased Shares in accordance with the provisions of my agreement with the
Corporation (or other documents) evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a condition
for exercise. Alternatively, I may utilize the special broker-dealer sale and
remittance procedure specified in my agreement to effect payment of the Exercise
Price for any Purchased Shares in which I am vested at the time of exercise of
the Option.
- -------------------------, --------
Date
-------------------------------------
Optionee
-------------------------------------
Address:
-----------------------------
-------------------------------------
Print name in exact manner
it is to appear on the
stock certificate:
-------------------------------------
Address to which certificate
is to be sent, if different
from address above:
-------------------------------------
-------------------------------------
Social Security Number:
-------------------------------------
-------------------------------------
<PAGE>
APPENDIX
--------
The following definitions shall be in effect under the
Agreement:
A. AGREEMENT shall mean this Automatic Stock Option Agreement.
---------
B. BOARD shall mean the Corporation's Board of Directors.
-----
C. CHANGE IN CONTROL shall mean a change in ownership or control of the
-----------------
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or related
group of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the Corporation's
stockholders, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (A) have been
Board members continuously since the beginning of such period or (B) have
been elected or nominated for election as Board members during such period
by at least a majority of the Board members described in clause (A) who
were still in office at the time the Board approved such election or
nomination.
D. COMMON STOCK shall mean shares of the Corporation's common stock.
------------
E. CODE shall mean the Internal Revenue Code of 1986, as amended.
----
F. CORPORATE TRANSACTION shall mean either of the following
---------------------
stockholder-approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Corporation's assets in complete liquidation or dissolution of
the Corporation.
A-1
<PAGE>
G. CORPORATION shall mean Sequenom, Inc., a Delaware corporation, and any
-----------
successor corporation to all or substantially all of the assets or voting stock
of Sequenom, Inc. which shall by appropriate action adopt the Plan.
H. EXERCISE DATE shall mean the date on which the option shall have been
-------------
exercised in accordance with Paragraph 10 of the Agreement.
I. EXERCISE PRICE shall mean the exercise price per share as specified in
--------------
the Grant Notice.
J. EXPIRATION DATE shall mean the date on which the option expires as
---------------
specified in the Grant Notice.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
-----------------
be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq National
Market, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question, as the price is reported by
the National Association of Securities Dealers on the Nasdaq National
Market and published in The Wall Street Journal. If there is no closing
-----------------------
selling price for the Common Stock on the date in question, then the Fair
Market Value shall be the closing selling price on the last preceding date
for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock Exchange,
then the Fair Market Value shall be the closing selling price per share of
Common Stock on the date in question on the Stock Exchange which serves as
the primary market for the Common Stock, as such price is officially quoted
in the composite tape of transactions on such exchange and published in
The Wall Street Journal. If there is no closing selling price for the
-----------------------
Common Stock on the date in question, then the Fair Market Value shall be
the closing selling price on the last preceding date for which such
quotation exists.
L. GRANT DATE shall mean the date of grant of the option as specified in
----------
the Grant Notice.
M. GRANT NOTICE shall mean the Notice of Grant of Automatic Stock Option
------------
accompanying the Agreement, pursuant to which Optionee has been informed of the
basic terms of the option evidenced hereby.
N. HOSTILE TAKEOVER shall mean the acquisition, directly or indirectly, by
----------------
any person or related group of persons (other than the Corporation or a person
that directly or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the meaning of
Rule 13d-3 of the 1934 Act) of securities possessing more
A-2
<PAGE>
than fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders which the Board does not recommend such
stockholders to accept.
O. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
--------
P. NON-STATUTORY OPTION shall mean an option not intended to satisfy the
--------------------
requirements of Code Section 422.
Q. NOTICE OF EXERCISE shall mean the notice of exercise in the form of
------------------
Exhibit I.
R. OPTION SHARES shall mean the number of shares of Common Stock subject to
-------------
the option.
S. OPTIONEE shall mean the person to whom the option is granted as
--------
specified in the Grant Notice.
T. PERMANENT DISABILITY shall mean the inability of Optionee to perform his
--------------------
or her usual duties as a member of the Board by reason of any medically
determinable physical or mental impairment which is expected to result in death
or has lasted or can be expected to last for a continuous period of twelve (12)
months or more.
U. PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
----
V. PURCHASE AGREEMENT shall mean the stock purchase agreement (in form and
------------------
substance satisfactory to the Corporation) which grants the Corporation the
right to repurchase, at the Exercise Price, any and all unvested Option Shares
held by Optionee at the time of Optionee's cessation of Board service and which
precludes the sale, transfer or other disposition of any purchased Option Shares
while those shares are unvested and subject to such repurchase right.
W. STOCK EXCHANGE shall mean the American Stock Exchange or the New York
--------------
Stock Exchange.
X. TAKE-OVER PRICE shall mean the greater of (i) the Fair Market Value per
--------------- -------
share of Common Stock on the date the option is surrendered to the Corporation
in connection with a Hostile Take-Over or (ii) the highest reported price per
share of Common Stock paid by the tender offeror in effecting the Hostile
Take-Over.
Y. VESTING SCHEDULE shall mean the vesting schedule specified in the Grant
----------------
Notice, pursuant to which the Option Shares will vest in one or more
installments over the Optionee's period of Board service, subject to
acceleration in accordance with the provisions of the Agreement.
A-3
<PAGE>
EXHIBIT 99.11
Director Fee Election
---------------------
<PAGE>
SEQUENOM, INC.
DIRECTOR FEE ELECTION
---------------------
Pursuant to the Director Fee Option Grant Program in effect under the
Corporation's 1999 Stock Incentive Plan (the "Plan"), I hereby elect to apply a
portion of my annual retainer fee for calendar year 200___ to the acquisition of
a special option grant to purchase shares of the Corporation's common stock (the
"Common Stock"). The percentage of my retainer fee to be so applied is as
follows:
________% of the annual retainer fee.
I hereby acknowledge and agree that this election shall be irrevocable and
that the option to be granted pursuant to such election will be subject to the
following terms:
1. The option will be granted on January _____, 200___.
2. The exercise price per share will be equal to one-third of the fair
market value per share of Common Stock (the closing selling price per share on
the Nasdaq National Market) on the option grant date.
3. The number of shares of Common Stock subject to the option will be
determined by dividing (i) the portion of the retainer fee I have elected to
apply to the acquisition of the option by (ii) two-thirds of the fair market
value per share of Common Stock on the option grant date.
4. The option will become exercisable in twelve (12) successive equal
monthly installments upon my completion of each calendar month of service on the
Board during calendar year 200__, with the first such installment to become
exercisable upon my continuation in Board service through January 31, 200___.
5. The remaining terms of the option will be as set forth in the Director
Fee Option Grant Program in effect under the Plan.
Signature:____________________________
Dated:________________________________
<PAGE>
EXHIBIT 99.12
Notice of Grant of Non-Employee Director under Director Fee Program
-------------------------------------------------------------------
<PAGE>
SEQUENOM, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
----------------------------------------
STOCK OPTION UNDER DIRECTOR FEE OPTION GRANT PROGRAM
----------------------------------------------------
Notice is hereby given of the following option grant (the "Option") to
purchase shares of Common Stock of Sequenom, Inc. (the "Corporation"):
Optionee:
-------- ------------------------------------------------------------
Grant Date:
---------- ----------------------------------------------------------
Exercise Price: $ per share
-------------- --------------------------------------------
Number of Option Shares: shares
----------------------- ---------------------------------------
Expiration Date:
--------------- -----------------------------------------------------
Type of Option: Non-Statutory Option
--------------
Exercise Schedule: The Option shall become exercisable for the Option
-----------------
Shares in a series of twelve (12) successive equal monthly
installments upon Optionee's completion of each calendar month of
service as a member of the Corporation's Board of Directors (the
"Board") during calendar year 200___, with the first such installment
to become exercisable upon Optionee's continuation in Board service
through January 31, 200___. In no event shall the Option become
exercisable for any additional Option Shares after Optionee's
cessation of Board service.
Optionee understands and agrees that the Option is granted subject to
and in accordance with the terms of the Director Fee Option Grant Program under
the Sequenom, Inc. 1999 Stock Incentive Plan (the "Plan"). Optionee further
agrees to be bound by the terms of the Plan and the terms of the Option as set
forth in the Director Fee Stock Option Agreement attached hereto as Exhibit A.
Optionee hereby acknowledge receipt of a copy of the official
prospectus for the Plan in the form attached hereto as Exhibit B. A copy of the
Plan is available upon request made to the Corporate Secretary at the
Corporation's principal offices.
<PAGE>
No Impairment of Rights. Nothing in this Notice or in the Plan or in
-----------------------
the attached Director Fee Stock Option Agreement shall interfere with or
otherwise restrict in any way the rights of the Corporation or the Corporation's
stockholders to remove Optionee form the Board at any time in accordance with
the provisions of applicable law.
Definitions. All capitalized terms in this Notice shall have the
-----------
meaning assigned to them in this Notice or in the attached Director Fee Stock
Option Agreement.
Dated:_______________ , ______
SEQUENOM, INC.
By:
_____________________________________
Title:
___________________________________
_________________________________________
OPTIONEE
Address:
_________________________________
_________________________________
ATTACHMENTS
- -----------
Exhibit A - Director Fee Stock Option Agreement
Exhibit B - Plan Summary and Prospectus
2
<PAGE>
EXHIBIT A
---------
DIRECTOR FEE STOCK OPTION AGREEMENT
-----------------------------------
<PAGE>
EXHIBIT B
---------
PLAN SUMMARY AND PROSPECTUS
---------------------------
<PAGE>
EXHIBIT 99.13
Director Fee Stock Option Program
---------------------------------
<PAGE>
SEQUENOM, INC.
DIRECTOR FEE STOCK OPTION AGREEMENT
-----------------------------------
RECITALS
- --------
A. The Corporation has implemented a special director fee stock option
grant program under the Plan pursuant to which non-employee members of the Board
may, by prior irrevocable election, apply all or any portion of the annual
retainer fee otherwise payable to them in cash to the acquisition of a special
stock option grant.
B. Optionee is a non-employee Board member who made the requisite election
to apply a portion of his or her retainer fee to the acquisition of the special
option, and this Agreement is executed pursuant to, and is intended to carry out
the purposes of, the Plan in connection with the grant of such special option to
Optionee.
C. All capitalized terms in this Agreement shall have the meaning assigned
to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee, as
---------------
of the Grant Date, a Non-Statutory Stock Option to purchase up to the number of
Option Shares specified in the Grant Notice. The Option Shares shall be
purchasable from time to time during the option term specified in Paragraph 2 at
the Exercise Price.
2. OPTION TERM. This option shall have a term of ten (10) years
-----------
measured from the Grant Date and shall accordingly expire at the close of
business on the Expiration Date, unless sooner terminated in accordance with
Paragraph 5, 6 or 8.
3. LIMITED TRANSFERABILITY
-----------------------
(a) This option may be assigned in whole or in part during
Optionee's lifetime to one or more members of the Optionee's immediate family or
to a trust established for the exclusive benefit of one or more such family
members or to Optionee's former spouse, to the extent such assignment is in
connection with the Optionee's estate plan or pursuant to a domestic relations
order. The assigned portion shall be exercisable only by the person or persons
who acquire a proprietary interest in the option pursuant to such assignment.
The terms applicable to the assigned portion shall be the same as those in
effect for this option immediately prior to such assignment.
<PAGE>
(b) Should the Optionee die while holding this option, then this
option shall be transferred in accordance with Optionee's will or the laws of
inheritance. However, Optionee may designate one or more persons as the
beneficiary or beneficiaries of this option, and this option shall, in
accordance with such designation, automatically be transferred to such
beneficiary or beneficiaries upon the Optionee's death while holding this
option. Such beneficiary or beneficiaries shall take the transferred option
subject to all the terms and conditions of this Agreement, including (without
limitation) the limited time period during which this option may, pursuant to
Paragraph 5, be exercised following Optionee's death.
4. EXERCISABILITY/VESTING. This option shall become exercisable for
----------------------
the Option Shares in a series of successive equal monthly installments as
specified in the Grant Notice. As the option becomes exercisable for those
installments, the installments shall accumulate, and the option shall remain
exercisable for the accumulated installments until the Expiration Date or sooner
termination of the option term under Paragraph 5, 6 or 8.
5. CESSATION OF BOARD SERVICE. Should Optionee's service as a Board
--------------------------
member cease while this option remains outstanding, then the option term
specified in Paragraph 2 shall terminate (and this option shall cease to be
outstanding) prior to the Expiration Date in accordance with the following
provisions:
(i) Should Optionee cease to serve as a Board member for any
reason (other than death or Permanent Disability) while holding this
option, then the period during which this option may be exercised shall be
reduced to a three (3)-year period measured from the date of such cessation
of Board service, but in no event shall this option be exercisable at any
time after the Expiration Date. During such limited exercise period, this
option may not be exercised in the aggregate for more than the number of
Option Shares (if any) for which the option is exercisable on the date of
Optionee's cessation of Board service. Upon the earlier of (A) the
-------
expiration of such three (3)-year period or (B) the specified Expiration
Date, the option shall terminate and cease to be exercisable with respect
to any exercisable Option Shares for which the option has not been
exercised.
(ii) Should Optionee cease service as a Board member by reason
of death or Permanent Disability, then this option shall automatically
accelerate and become immediately exercisable for all the Option Shares at
the time subject to this option so that Optionee (or the personal
representative of Optionee's estate or the person or persons to whom the
option is transferred upon Optionee's death or the designated beneficiary
or beneficiaries of this option, as the case may be) shall have the right
to exercise this option for any or all of those Option Shares as fully-
vested shares of Common Stock. Any such right to exercise this option shall
lapse upon the earlier of (A) the expiration of the three (3)-year period
measured from the date of Optionee's cessation of Board service or (B) the
specified Expiration Date.
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(iii) Upon Optionee's cessation of Board service for any reason
other than death or Permanent Disability, this option shall immediately
terminate and cease to be outstanding with respect to any and all Option
Shares for which the option is not otherwise at that time exercisable.
6. CORPORATE TRANSACTION.
---------------------
(a) This option, to the extent outstanding at the time of a
Corporate Transaction but not otherwise fully exercisable for all the Option
Shares, shall automatically accelerate so that this option shall, immediately
prior to the effective date of such Corporate Transaction, become exercisable
for all the Option Shares at the time subject to this option and may be
exercised for any or all of those Option Shares as fully vested shares of Common
Stock. Immediately following such Corporate Transaction, this option shall
terminate and cease to be outstanding, except to the extent assumed by the
successor corporation (or parent thereof).
(b) To the extent assumed by the successor corporation (or parent
thereof) in connection with such Corporate Transaction, this option shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
to the number and class of securities which would have been issuable to Optionee
in consummation of such Corporate Transaction had the option been exercised
immediately prior to such Corporate Transaction, and appropriate adjustments
shall also be made to the Exercise Price, provided the aggregate Exercise Price
--------
shall remain the same. To the extent the actual holders of the Corporation's
outstanding Common Stock receive cash consideration for their Common Stock in
consummation of the Corporate Transaction, the successor corporation may, in
connection with the assumption of this option, substitute one or more shares of
its own common stock with a fair market value equivalent to the cash
consideration paid per share of Common Stock in such Corporate Transaction. This
option, as so assumed, shall remain fully exercisable for all the Option Shares
subject to such option until the earliest to occur of (i) the expiration of the
--------
three (3)-year period measured from the date of Optionee's cessation of Board
service, (ii) the specified Expiration Date or (iii) the cash-out of this option
pursuant to the provisions of Paragraph 8.
(c) This Agreement shall not in any way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
7. CHANGE IN CONTROL.
-----------------
(a) This option, to the extent outstanding at the time of a
Change of Control but not otherwise fully exercisable for all the Option Shares,
shall automatically accelerate so that this option shall, immediately prior to
the effective date of such Change in Control, become exercisable for all the
Option Shares at the time subject to this option and may be exercised for any or
all of those Option Shares as fully vested shares of Common Stock.
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<PAGE>
(b) The option shall remain exercisable for such fully-vested
Option Shares until the earliest to occur of (i) the expiration of the three
--------
(3)-year period measured from the date of Optionee's cessation of Board service,
the specified Expiration Date, (iii) the termination of this option in
connection with a Corporate Transaction or (iv) the cash-out of this option
pursuant to the provisions of Paragraph 8.
8. HOSTILE TAKE-OVER. Optionee is hereby granted a limited stock
-----------------
appreciation right exercisable upon the following terms and conditions:
(a) Optionee shall have the unconditional right, exercisable at
any time during the thirty (30)-day period immediately following a Hostile Take-
Over, to surrender this option to the Corporation. In return for the surrendered
option, Optionee shall receive a cash distribution from the Corporation in an
amount equal to the excess of (A) the Take-Over Price of the shares of Common
Stock which are at the time subject to the surrendered option (whether or not
the option is otherwise at that time exercisable for those Option Shares) over
(B) the aggregate Exercise Price payable for such shares.
(b) To exercise this limited stock appreciation right, Optionee
must, during the applicable thirty (30)-day exercise period, provide the
Corporation with written notice of the option surrender in which there is
specified the number of Option Shares as to which the option is being
surrendered. Such notice must be accompanied by the return of Optionee's copy of
this Agreement, together with any written amendments to such Agreement. The cash
distribution shall be paid to Optionee within five (5) business days following
such delivery date. The exercise of the limited stock appreciation right in
accordance with the terms of this Paragraph 8 has been pre-approved pursuant to
the express provisions of the Plan, and no further approval of the Plan
Administrator or the Board shall be required at the time of the actual option
surrender and cash distribution. Upon receipt of such cash distribution, this
option shall be cancelled with respect to the Option Shares for which the option
has been surrendered, and Optionee shall cease to have any further right to
acquire those Option Shares under this Agreement. The option shall, however,
remain outstanding for the balance of the Option Shares (if any) in accordance
with the terms of this Agreement, and the Corporation shall issue a replacement
stock option agreement (substantially in the same form as this Agreement) for
those remaining Option Shares.
(c) In no event may this limited stock appreciation right be
exercised when there is not a positive spread between the Fair Market Value of
the Option Shares subject to the surrendered option and the aggregate Exercise
Price payable for such shares. This limited stock appreciation right shall in
all events terminate upon the expiration or sooner termination of the option
term and may not be assigned or transferred by Optionee, except to the extent
the option is transferred in accordance with the provisions of this Agreement.
9. STOCKHOLDER RIGHTS. The holder of this option shall not have any
------------------
stockholder rights with respect to the Option Shares until such person shall
have exercised the option, paid the Exercise Price and become a holder of record
of the purchased shares.
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10. ADJUSTMENT IN OPTION SHARES. Should any change be made to the
---------------------------
Common Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the number and/or
class of securities subject to this option and (ii) the Exercise Price in order
to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
11. MANNER OF EXERCISING OPTION.
---------------------------
(a) In order to exercise this option with respect to all or any
part of the Option Shares for which this option is at the time exercisable,
Optionee (or any other person or persons exercising the option) must take the
following actions:
(i) Execute and deliver to the Corporation a Notice of
Exercise for the Option Shares for which the option is exercised.
(ii) Pay the aggregate Exercise Price for the purchased
shares in one or more of the following forms:
(A) cash or check made payable to the Corporation,
(B) shares of Common Stock held by Optionee (or any
other person or persons exercising the option) for the requisite period
necessary to avoid a charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on the Exercise Date, or
(C) through a special sale and remittance procedure
pursuant to which Optionee (or any other person or persons exercising the
option) shall concurrently provide irrevocable instructions (I) to a
Corporation-designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate
Exercise Price payable for the purchased shares plus all applicable
Federal, state and local income taxes required to be withheld by the
Corporation by reason of such exercise and (II) to the Corporation to
deliver the certificates for the purchased shares directly to such
brokerage firm in order to complete the sale.
Except to the extent the sale and remittance procedure is
utilized in connection with the option exercise, payment of the Exercise
Price must accompany the Notice of Exercise.
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<PAGE>
(iii) Furnish to the Corporation appropriate documentation
that the person or persons exercising the option (if other than Optionee)
have the right to exercise this option.
(b) As soon after the Exercise Date as practical, the
Corporation shall issue to or on behalf of Optionee (or any other person or
persons exercising this option) a certificate for the purchased Option Shares,
with the appropriate legends affixed thereto.
(c) In no event may this option be exercised for any fractional
shares.
12. COMPLIANCE WITH LAWS AND REGULATIONS.
------------------------------------
(a) The exercise of this option and the issuance of the Option
Shares upon such exercise shall be subject to compliance by the Corporation and
Optionee with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock may be listed for trading at the time of
such exercise and issuance.
(b) The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be necessary
to the lawful issuance and sale of any Common Stock pursuant to this option
shall relieve the Corporation of any liability with respect to the non-issuance
or sale of the Common Stock as to which such approval shall not have been
obtained. The Corporation, however, shall use its best efforts to obtain all
such approvals.
13. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided
----------------------
in Paragraph 3, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns, the legal representatives, heirs and legatees of
Optionee's estate and any beneficiaries of this option designated by Optionee.
14. NOTICES. Any notice required to be given or delivered to the
-------
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee at
the address indicated below Optionee's signature line on the Grant Notice. All
notices shall be deemed effective upon personal delivery or upon deposit in the
U.S. mail, postage prepaid and properly addressed to the party to be notified.
15. CONSTRUCTION. This Agreement and the option evidenced hereby
------------
are made and granted pursuant to the director fee option grant program in effect
under the Plan and are in all respects limited by and subject to the terms of
that program.
16. GOVERNING LAW. The interpretation, performance and enforcement
-------------
of this Agreement shall be governed by the laws of the State of California
without resort to that State's conflict-of-laws rules.
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<PAGE>
APPENDIX
--------
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Director Fee Stock Option Agreement.
---------
B. BOARD shall mean the Corporation's Board of Directors.
-----
C. CHANGE IN CONTROL shall mean a change in ownership or control of the
-----------------
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or related
group of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the Corporation's
stockholders, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (A) have been
Board members continuously since the beginning of such period or (B) have
been elected or nominated for election as Board members during such period
by at least a majority of the Board members described in clause (A) who
were still in office at the time the Board approved such election or
nomination.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
----
E. COMMON STOCK shall mean the Corporation's common stock.
------------
F. CORPORATE TRANSACTION shall mean either of the following stockholder-
---------------------
approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing more
than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Corporation's assets in complete liquidation or dissolution of
the Corporation.
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G. CORPORATION shall mean Sequenom, Inc., a Delaware corporation, and any
-----------
successor corporation to all or substantially all of the assets or voting stock
of Sequenom, Inc. which shall by appropriate action adopt the Plan.
H. EXERCISE DATE shall mean the date on which the option shall have been
-------------
exercised in accordance with Paragraph 10 of the Agreement.
I. EXERCISE PRICE shall mean the exercise price per share as specified in
--------------
the Grant Notice.
J. EXPIRATION DATE shall mean the date on which the option expires as
---------------
specified in the Grant Notice.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
----------------
be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq National
Market, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question, as such price is reported by
the National Association of Securities Dealers on the Nasdaq National
Market and published in The Wall Street Journal. If there is no selling
-----------------------
price quoted for the Common Stock on the date in question, then the Fair
Market Value shall be closing selling price on the last preceding date for
which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock Exchange,
then the Fair Market Value shall be the closing selling price per share of
Common Stock on the date in question on the Stock Exchange serving as the
primary market for the Common Stock, as such price is officially quoted in
the composite tape of transactions on such exchange and published in
The Wall Street Journal. If there is no selling price quoted for the Common
-----------------------
Stock on the date in question, then the Fair Market Value shall be the
average of the high and low selling price on the last preceding date for
which such quotation exists.
L. GRANT DATE shall mean the date of grant of the option as specified in
----------
the Grant Notice.
M. GRANT NOTICE shall mean the Notice of Grant of Non-Employee Director
------------
Stock Option Under Director Fee Option Grant Program accompanying the Agreement,
pursuant to which Optionee has been informed of the basic terms of the option
evidenced hereby.
N. HOSTILE TAKE-OVER shall mean the acquisition, directly or indirectly, by
-----------------
any person or related group of persons (other than the Corporation or a person
that directly or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities Exchange Act of 1934,
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<PAGE>
as amended) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders which
the Board does not recommend such stockholders to accept.
O. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
--------
P. NON-STATUTORY STOCK OPTION shall mean an option not intended to satisfy
--------------------------
the requirements of Code Section 422.
Q. NOTICE OF EXERCISE shall mean the written notice of the option exercise
------------------
on the form provided by the Corporation for such purpose.
R. OPTION SHARES shall mean the number of shares of Common Stock subject
-------------
to the option as specified in the Grant Notice.
S. OPTIONEE shall mean the person to whom the option is granted as
--------
specified in the Grant Notice.
T. PERMANENT DISABILITY shall mean the inability of Optionee to perform
--------------------
his or her usual duties as a Board member by reason of any medically
determinable physical or mental impairment expected to result in death or to be
of continuous duration of twelve (12) months or more.
U. PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
----
V. STOCK EXCHANGE shall mean the American Stock Exchange or the New York
--------------
Stock Exchange.
W. TAKE-OVER PRICE per share shall mean the greater of (A) the Fair Market
--------------- -------
Value per Option Share on the option surrender date under Paragraph 8 or (B) the
highest reported price per share of Common Stock paid by the tender offeror in
effecting the Hostile Take-Over.
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the 1999 Stock Incentive Plan and the 1999 Employee
Stock Purchase Plan of Sequenom, Inc. of our report dated January 23, 2000 with
respect to the consolidated financial statements of Sequenom, Inc. included in
the Registration Statement (Form S-1 No. 333-91665) of Sequenom, Inc., filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
/s/ Ernst & Young LLP
San Diego, California
January 31, 2000
