EXHIBIT 10.02
Change of Control Retention and Severance Agreement
This Change of Control Retention and
Severance Agreement (the “ Agreement ”)
is made and entered into as of April 14, 2008 (the “
Effective Date ”), by and between Cepheid and
Andrew D. Miller (the “ Executive ”).
Capitalized terms used in this Agreement shall have the meanings
set forth in Section 3 below.
1.
Purpose . The purpose of this Agreement is to encourage
Executive to remain in the employ of the Company and to continue to
devote Executive’s full attention to the success of the
Company in the event of a Change of Control, as such term is
defined in Section 3 of this Agreement.
2.
Termination Upon Change of Control . In the event of
Executive’s Termination Upon a Change of Control, Executive
shall receive the following payments and benefits:
2.1 Accrued Salary and Vacation,
and Benefits . Executive shall receive all salary and accrued
vacation (less applicable withholding) earned through
Executive’s termination date, and the benefits, if any, under
Company benefit plans to which Executive may be entitled pursuant
to the terms of such plans.
2.2 Stock Award Acceleration .
Provided that Executive complies with Section 5 below, all
outstanding stock options granted and restricted stock issued by
the Company to Executive prior to the Change of Control shall
become fully vested and exercisable immediately prior to the
effective date of the Termination Upon a Change of Control.
2.3 Cash Severance Payment .
Provided that Executive complies with Section 5 below,
Executive shall receive a lump sum cash payment in an amount equal
to fifteen (15) months of Executive’s effective base
salary (less applicable withholding), paid within ten
(10) business days of the effective date of the Termination
Upon a Change of Control.
3.
Definitions . Capitalized terms used in this Agreement shall
have the meanings set forth in this Section 3.
3.1 “ Cause ”
means Executive’s (a) failure to perform any reasonable
and lawful duty of Executive’s position or failure to follow
the lawful written directions of the Chief Executive Officer;
(b) commission of an act that constitutes misconduct and is
injurious to the Company or any subsidiary; (c) conviction of,
or pleading “guilty” or “no contest” to, a
felony under the laws of the United States or any state thereof;
(d) committing an act of fraud against, or the
misappropriation of property belonging to, the Company or any
subsidiary; (e) commission of an act of dishonesty in
connection with Executive’s responsibilities as an employee
and affecting the business or affairs of the Company;
(f) breach of any confidentiality, proprietary information or
other agreement between Executive and the Company or any
subsidiary; or (g) failure or refusal to carry out the
reasonable directives of the Company.
3.2 “ Change of Control
” means (a) any “person” (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”)),
other than a trustee or other fiduciary holding securities of the
Company under an employee benefit plan of the Company, becomes the
“beneficial owner” (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of
(A) the outstanding shares of common stock of the Company or
(B) the combined voting power of the Company’s then
outstanding securities; (b) the Company i
