ILLUMINA, INC.
AMENDED AND RESTATED CHANGE IN CONTROL
SEVERANCE AGREEMENT
The following
persons have executed a form of this agreement:
Christian O.
Henry
Senior Vice President & Chief Financial
Officer
Christian G.
Cabou
Senior Vice President & General Counsel
Greg F.
Heath
Senior Vice President & General Manager, Diagnostics
Business
Joel McComb
Senior Vice President & General Manager, Life Sciences
Business
Tristan B.
Orpin
Senior Vice President, Commercial Operations
Mostafa
Ronaghi
Senior Vice President & Chief Technology
Officer
There are no
material differences between the forms of agreements executed by
these people.
ILLUMINA, INC.
AMENDED AND RESTATED CHANGE IN CONTROL
SEVERANCE AGREEMENT
This
AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT (the
“ Agreement ”), is made as of the 22
nd day of October 2008 by and between
ILLUMINA, INC., a Delaware corporation (the “ Company
”) and
(the “ Executive ”).
WHEREAS,
the Executive is a key member of the management of the Company, and
the Board of Directors of the Company (the “ Board
”) considers it to be in the best interests of the Company
and its stockholders to foster the retention of its key management
personnel;
WHEREAS,
it is expected that from time to time the Board may consider the
possibility of a Change in Control of the Company, and the Board
recognizes that a Change in Control and the uncertainties that it
may raise among management could result in the departure or
distraction of management personnel to the detriment of the
Company;
WHEREAS,
this Agreement is intended to create an incentive for the Executive
to remain in the employ of the Company and to maximize the value of
the Company for the benefit of the stockholders in connection with
a Change in Control;
WHEREAS,
the Executive and the Company are parties to a Change in Control
Severance Agreement, dated April 14, 2008 (the “
Change in Control Agreement ”); and
WHEREAS,
the Executive and the Company desire to amend and restate the
Change in Control Agreement.
NOW,
THEREFORE, in consideration of the covenants herein contained and
the continued employment of the Executive, the parties hereto agree
as follows:
This
Agreement became effective on April 14, 2008 (the “
Effective Date ”) and shall continue to be effective
for the period beginning on the Effective Date and ending on
August 21, 2009 (the “Initial End Date”), provided
that such period shall be automatically extended for an additional
year on each anniversary of the Initial End Date, unless written
notice of non-extension is provided by either party to the other
party at least 90 days prior to such anniversary (the “
Agreement Term ”).
In
the event of a Change in Control occurring during the Agreement
Term, the provisions of this Agreement relating to severance rights
and benefits of the Executive shall apply with respect to any
Covered Termination that occurs during the Protection Period that
follows the Change in Control, as provided in Section 3
hereof. The obligations of the Company hereunder with respect to
any such Covered Termination shall survive the expiration of the
Agreement Term.
For
purposes of this Agreement, “ Change in Control
” shall mean the occurrence of one of the following during
the Agreement Term:
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(a)
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any
merger or consolidation in which the Company shall not be the
surviving entity (or survives only as a subsidiary of another
entity whose stockholders did not own all or
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substantially
all of the Company’s common stock in substantially the same
proportions as immediately prior to such transaction);
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(b)
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the
sale of all or substantially all of the Company’s assets to
any other person or entity (other than a wholly-owned
subsidiary);
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(c)
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the
acquisition of beneficial ownership of a controlling interest
(including, without limitation, power to vote) in the outstanding
shares of the Company’s common stock by any person or entity
(including a “group” as defined by or under Section
13(d)(3) of the Securities Exchange Act of 1934, as
amended);
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(d)
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a
contested election of directors of the Company, as a result of
which or in connection with which the persons who were directors
before such election or their nominees (the “ Incumbent
Directors ”) cease to constitute a majority of the Board;
provided , however that if the election, or
nomination for election by the Company’s stockholders, of any
new director was approved by a vote of at least fifty percent (50%)
of the Incumbent Directors, such new director shall be considered
as an Incumbent Director; or
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(e)
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any
other event specified by the Board.
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(a)
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General . For purposes of this Agreement,
“ Covered Termination ” shall mean the
occurrence of one of the following during the period beginning on
the date of the event that constitutes a Change in Control and
ending on the second anniversary of such date (the “
Protection Period ”):
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(i)
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termination of employment by the
Company other than for “ Cause ” (as defined in
Section 3(b) below); or
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(ii)
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termination of employment by the
Executive on account of “ Good Reason ” (as
defined in Section 3(c) below).
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In
addition, if the Executive is terminated by the Company other than
for Cause following the execution of a definitive agreement or the
occurrence of such other definitive event which if consummated will
result in a Change in Control, but prior to the consummation of the
Change in Control, such termination will be deemed a Covered
Termination to the extent the Board, in its discretion, determines
such termination to be at the direction or request of a party to
the Change in Control transaction or is otherwise related to such
pending Change in Control.
A
Covered Termination shall not include termination of employment of
the Executive for Cause or by reason of death or Disability, nor a
termination of employment by the Executive other than for Good
Reason. For purposes of this Agreement, “ Disability
” shall mean the inability to perform the Executive’s
duties due to physical or mental illness or impairment continuing
for a period of six consecutive months.
Notwithstanding
anything to the contrary in this Agreement, for purposes of this
Agreement, any reference to “ termination ,” as
it relates to a Covered Termination, shall refer to a
termination of
employment which constitutes a “ separation from
service ” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “ Code
”).
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(b)
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Termination For Cause
. For purposes of this
Agreement, a termination of the Executive’s employment by the
Company shall be deemed a termination for “ Cause
” in the event of:
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(i)
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the
Executive’s repeated failure or refusal to materially perform
the Executive’s duties to the Company (other than by reason
of temporary illness or other excused absence), as such duties
existed immediately prior to the Change in Control;
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(ii)
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the
Executive’s criminal conviction or a plea of nolo contendere
with respect to a crime constituting a felony or a crime of moral
turpitude; or
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(iii)
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the
Executive’s engagement in an act of malfeasance, fraud or
dishonesty in connection with the Company that materially damages
the business or reputation of the Company.
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Notwithstanding
the foregoing, the Executive’s employment shall be considered
to have been terminated for Cause only if, prior to such
termination for Cause, (1) the Company shall have given to the
Executive written notice stating with specificity the reason for
the Executive’s termination and the provision of this Section
3(b) that is relied upon, and (2) if such reason for
termination is item (i) or (iii) above, then a period of
15 days from the giving of such notice shall have elapsed
without the Executive’s having cured or remedied such reason
for termination during such 15-day period, unless such reason for
termination cannot be cured or remedied within 15 days, in
which case the period for remedy or cure shall be extended for a
reasonable time (not to exceed 15 days), provided the Executive has
made and continues to make a diligent effort to effect such remedy
or cure.
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(c)
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Good Reason . For purposes of this Agreement,
the termination of employment by the Executive shall be deemed on
account of “ Good Reason ” in the event
of:
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(i)
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any
reduction in the Executive’s annual base salary amount or
annual target bonus percentage from that in effect immediately
prior to the Change in Control;
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(ii)
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any
reduction or other adverse change in the position, title, duties,
responsibilities, level of authority or reporting relationships of
the Executive from that in effect immediately prior to the Change
in Control, including, without limitation, (a) in the event
the Executive is the most senior executive in a particular Company
function at the time of the Change in Control, the Executive ceases
to be the most senior executive in such function, (b) in the
event the Executive performs at the time of the Change in Control
external duties typical in a public company, the Executive ceases
to perform such duties or (c) any other such reduction
attributable to the fact that the Company ceases to be a public
company as a result of the Change in Control; or
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(iii)
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a
relocation, without the Executive’s written consent, of the
Executive’s principal place of business by more than 35 miles
from the Executive’s principal place of business immediately
prior to the Change in Control.
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Notwithstanding
the foregoing, the Executive’s employment shall be considered
to have been terminated on account of Good Reason only if, prior to
such termination on account of Good Reason, (1) the Executive
shall have given to the Company written notice stating with
specificity the reason for the Executive’s termination and
the provision of this Section 3(c) that is relied upon, and
(2) a period of 15 days from the giving of such notice
shall have elapsed without the Company’s having cured or
remedied such reason for termination during such 15-day period,
unless such reason for termination cannot be cured or remedied
within 15 days, in which case the period for remedy or cure
shall be extended for a reasonable time (not to exceed
15 days), provided the Company has made and continues to make
a diligent effort to effect such remedy or cure. Unless the
Executive shall have provided his written consent, the
Executive’s continued employment shall not constitute consent
to, or a waiver of rights with respect to, any event or condition
constituting Good Reason.
In
the event that the Executive’s employment with the
Comp
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