EXHIBIT 99.13
Director Fee Stock Option Program
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SEQUENOM, INC.
DIRECTOR FEE STOCK OPTION AGREEMENT
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RECITALS
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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
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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
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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
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(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
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
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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
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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
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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.
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(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
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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
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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.
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(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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(b) The option shall remain exercisable for such fully-vested
Option Shares until the earliest to occur of (i) the expiration of the three
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(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
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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
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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
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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.
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(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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(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.
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(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
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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
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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
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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
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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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APPENDIX
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The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Director Fee Stock Option Agreement.
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B. BOARD shall mean the Corporation's Board of Directors.
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C. CHANGE IN CONTROL shall mean a change in ownership or control of the
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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 0000 Xxx) 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.
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E. COMMON STOCK shall mean the Corporation's common stock.
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F. CORPORATE TRANSACTION shall mean either of the following stockholder-
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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
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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
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exercised in accordance with Paragraph 10 of the Agreement.
I. EXERCISE PRICE shall mean the exercise price per share as specified in
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the Grant Notice.
J. EXPIRATION DATE shall mean the date on which the option expires as
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specified in the Grant Notice.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
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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
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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
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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.
X. XXXXX DATE shall mean the date of grant of the option as specified in
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the Grant Notice.
X. XXXXX NOTICE shall mean the Notice of Grant of Non-Employee Director
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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
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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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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.
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P. NON-STATUTORY STOCK OPTION shall mean an option not intended to satisfy
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the requirements of Code Section 422.
Q. NOTICE OF EXERCISE shall mean the written notice of the option exercise
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on the form provided by the Corporation for such purpose.
R. OPTION SHARES shall mean the number of shares of Common Stock subject
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to the option as specified in the Grant Notice.
S. OPTIONEE shall mean the person to whom the option is granted as
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specified in the Grant Notice.
T. PERMANENT DISABILITY shall mean the inability of Optionee to perform
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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.
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V. STOCK EXCHANGE shall mean the American Stock Exchange or the New York
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Stock Exchange.
W. TAKE-OVER PRICE per share shall mean the greater of (A) the Fair Market
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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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