December 31, 2007
VIA HAND DELIVERY
John R. Sluis
53 Patrick Way
Half Moon Bay, CA 94019
||Terms of Separation and Consultancy
This letter confirms the agreement (Agreement) between you and Cepheid (the Company)
(collectively, the Parties) concerning the terms of your retirement and the consulting
arrangement described herein in exchange for a general release of claims and covenant not to sue.
1. Employment Termination Date: As a result of your retirement, your last day of employment
with the Company will be December 31, 2007 (the Employment Termination Date).
2. Acknowledgment of Payment of Wages: By your signature below, you acknowledge that, as of
the Employment Termination Date, you have received all wages, salary, bonuses (other than the Bonus
(as defined below)), commissions, reimbursable expenses, accrued vacation and any similar payments
due you from the Company in connection with your employment as of the Employment Termination Date.
By signing below, you acknowledge that the Company does not owe you any other amounts with respect
to your employment.
3. Terms of Separation and Consulting Arrangement: You and the Company hereby agree as
a. Consulting Services: Following the Employment Termination Date and continuing until
December 31, 2008 (the Separation Date) (such period, the Consulting Period), you will make
yourself available, on an as-requested basis, for up to 15 hours per week to consult with, advise,
and answer questions from the Companys management (the Services).
b. Compensation: During the Consulting Period, in consideration for the Services, the Company
will pay you an amount equivalent to your current base salary of an aggregate annual amount of
$324,000 (the Consulting Rate) payable on the Companys normal pay dates for its consultants.
c. Bonus: The Company will pay you the portion of your 2007 bonus, if any (the Bonus),
awarded to you with respect to the Companys 2007 Executive Incentive Plan (the Plan), the amount
of which shall be determined pursuant to the terms of the Plan. Such Bonus will be payable at such
time as bonuses are distributed to the Companys officers pursuant to the Plan.
d. Stock Vesting: Pursuant to the Companys 1997 and 2006 Equity Incentive Plans, you were
granted options to purchase 452,000 shares of the Companys common stock (the Options). As of the
Employment Termination Date, the Options will have vested as to 343,720 shares and will remain
unvested as to 108,280 shares (the Unvested Shares).
||During the Consulting Period, the Unvested Shares will continue to
vest and become exercisable according to the schedules set forth in each such
Option. On the Separation Date, such vesting will cease, and no shares (other
than as provided in the next paragraph) will vest following the Separation Date.
||On the Separation Date, provided that you have completed the
Services to the satisfaction of the Chief Executive Officer of the Company, as
determined in his sole discretion, an additional 24,000 then Unvested Shares
subject to the Options will accelerate and become vested and exercisable.
You will have 90 days following the Separation Date to exercise any vested Options not
e. COBRA: Upon your timely election following the Employment Termination Date to continue
your existing health benefits under COBRA, and consistent with the terms of COBRA and the Companys
health benefits plan, the Company will pay the insurance premiums to continue your existing health
benefits during the Consulting Period. You must continue to pay the portion of premiums,
co-payments, etc. that you would have paid had your employment continued.
By signing below, you acknowledge that you are receiving certain benefits outlined in this
Section 3 partially in consideration for waiving your rights to claims referred to in this
Agreement, and that you would not otherwise be entitled to such benefits.
4. Change of Control Benefits:
a. From the Employment Termination Date through September 30, 2008: Pursuant to its terms,
your eligibility to receive benefits under the Change of Control Agreement will terminate upon the
Employment Termination Date. Notwithstanding the foregoing, in the event that the Company undergoes
a Change of Control (as defined in the Change of Control Agreement) on a date that is after the
Employment Termination Date but on or before September 30, 2008, and provided you execute a general
release and waiver of claims and covenant not to sue substantially in the form as that set forth in
Sections 7 and 8 below, the Consulting Period shall terminate and:
||all of the Unvested Shares subject to your Options will become fully
vested and exercisable immediately prior to the effective date of the Change of
Control and you will have 90 days following such date to exercise any such shares
not previously exercised, and
||you will receive a lump sum cash payment in an amount equal to the
aggregate amount you would have received if you had been paid at the Consulting Rate
from the date of the Change of Control through March 31, 2009.
Such benefits will be in lieu of any benefits set forth in Sections 3(b), 3(d) and 3(e) hereof, but
will be in addition to any Bonus awarded to you pursuant to Section 3(c) hereof.
b. On and after October 1, 2008: Beginning on October 1, 2008, you will not be eligible to
receive any benefits set forth in this Section 4.
5. Return of Company Property: You hereby warrant to the Company that, on or prior to the
Employment Termination Date, you will have returned to the Company all property or data of the
Company of any type whatsoever that has been in your possession or control.
6. Confidential Information: You hereby acknowledge and agree that: (a) you are bound by the
attached Employee Confidential Information and Inventions Agreement dated June 4, 2002, and will
continue to be bound by it following the Employment Termination Date; (b) as a result of your
employment and contemplated consulting arrangement with the Company, you have had and, until the
Separation Date, will continue to have access to the Companys Proprietary Information (as defined
in the attached agreement); and (d) you will hold all Proprietary Information in strictest
confidence and will not make use of such Proprietary Information on behalf of anyone. You further
confirm that, on or prior to the Separation Date, you will have returned to the Company all
documents and data of any nature containing or pertaining to such Proprietary Information, and that
you will not take with you any such documents or data or any reproduction thereof.
7. General Release and Waiver of Claims:
The payments and promises set forth in this Agreement are in full satisfaction of all accrued
salary, vacation pay, bonus and commission pay, profit-sharing, stock options, termination benefits
or other compensation to which you may be entitled by virtue of your employment with the Company or
your separation from the Company. To the fullest extent permitted by law, you hereby release and
waive any other claims you may have against the Company and its owners, agents, officers,
shareholders, employees, directors, attorneys, subscribers, subsidiaries, affiliates, successors
and assigns (collectively Releasees), whether known or not known, including, without limitation,
claims under any employment laws, including, but not limited to, claims of unlawful discharge,
breach of contract, breach of the covenant of good faith and fair dealing, fraud, violation of
public policy, defamation, physical injury, emotional distress, claims for additional compensation
or benefits arising out of your employment or your separation of employment, claims under Title VII
of the 1964 Civil Rights Act, as amended, the California
Fair Employment and Housing Act and any
other laws and/or regulations relating to employment or employment discrimination, including,
without limitation, claims based on age or under the Age Discrimination in Employment Act or Older
Workers Benefit Protection Act, and/or claims based on disability or under the Americans with
By signing below, you expressly waive any benefits of Section 1542 of the Civil Code of the
State of California
, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You and the Company do not intend to release claims that you may not release as a matter of
law, including but not limited to claims for indemnity under California
Labor Code section 2802. To
the fullest extent permitted by law, any dispute regarding the scope of this general release shall
be determined by an arbitrator under the procedures set forth in the arbitration clause below.
8. Covenant Not to Sue:
To the fullest extent permitted by law, at no time subsequent to the execution of this
Agreement will you pursue, or cause or knowingly permit the prosecution, in any state, federal or
foreign court, or before any local, state, federal or foreign administrative agency, or any other
tribunal, any charge, claim or action of any kind, nature and character whatsoever, known or
unknown, which you may now have, have ever had, or may in the future have against Releasees, which
is based in whole or in part on any matter covered by this Agreement.
Nothing in this section shall prohibit you from filing a charge or complaint with a government
agency such as but not limited to the Equal Employment Opportunity Commission, the National Labor
Relations Board, the Department of Labor, the California
Department of Fair Employment and Housing,
or other applicable state agency.
Nothing in this section shall prohibit or impair you or the Company from complying with all
applicable laws, nor shall this Agreement be construed to obligate either party to commit (or aid
or abet in the commission of) any unlawful act.
9. Independent Contractor Status: During the Consulting Period, you will be an independent
contractor and not an agent or employee of, and will have no authority to bind, the Company, by
contract or otherwise. You will perform the Services as requested by, and under the general
direction of, the Company, but will determine, in your sole discretion, the manner and means by
which the Services are accomplished, subject to the requirement that you will at all times comply
with applicable law. You will report as self-employment income all compensation received by you
pursuant to this Agreement. You will hold the Company harmless from all claims, damages, or losses
relating to any obligation imposed by law on Company to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in connection with compensation received by
you during the Consulting Period pursuant to this Agreement. Other than as set forth in Section 3
hereof, you will not be entitled to receive any vacation or illness payments or to participate in
any plans, arrangements, or distributions by the Company pertaining to any bonus, stock option,
profit sharing, insurance or similar benefits for the Companys employees.
10. Nondisparagement: You agree that you will not disparage Releasees or their business,
financial performance or reporting practices, products, services, agents, representatives,
directors, officers, shareholders, attorneys, employees, vendors, affiliates, successors or
assigns, or any person acting by, through, under or in concert with any of them, with any written
or oral statement. Nothing in this paragraph shall prohibit you from providing truthful information
in response to a subpoena or other legal process.
11. Arbitration: Except for any claim for injunctive relief arising out of a breach of a
partys obligations to protect the others proprietary information, the Parties agree to arbitrate,
in Santa Clara County before JAMS, any and all disputes or claims arising out of or related to the
validity, enforceability, interpretation, performance or breach of this Agreement, whether sounding
in tort, contract, statutory violation or otherwise, or involving the construction or application
or any of the terms, provisions, or conditions of this Agreement. Any arbitration may be initiated
by a written demand to the other party. The arbitrators decision shall be final, binding, and
conclusive. The Parties further agree that this Agreement is intended to be strictly construed to
provide for arbitration as the sole and exclusive means for resolution of all disputes hereunder to
the fullest extent permitted by law. The Parties expressly waive any entitlement to have such
controversies decided by a court or a jury.
12. Attorneys Fees: If any action is brought to enforce the terms of this Agreement, the
prevailing party will be entitled to recover its reasonable attorneys fees, costs and expenses
from the other party, in addition to any other relief to which the prevailing party may be
13. Confidentiality: Until this Agreement is filed with the U.S. Securities and Exchange
Commission by the Company pursuant to applicable securities laws, the contents, terms and
conditions of this Agreement must be kept confidential by you and may not be disclosed except to
your accountant or attorneys or pursuant to subpoena or court order. Until such date, you agree
that if you are asked for information concerning this settlement, you will state only that you and
the Company reached an amicable resolution of any disputes concerning your separation from the
Company. Any breach of this confidentiality provision shall be deemed a material breach of this
14. No Solicitation: For a period of one (1) year following the Separation Date, you agree
that you will not, directly or indirectly, solicit away employees or consultants of the Company for
your own benefit or for the benefit of any other person or entity.
15. No Admission of Liability: This Agreement is not and shall not be construed or contended
by you to be an admission or evidence of any wrongdoing or liability on the part of Releasees,
their representatives, heirs, executors, attorneys, agents, partners, officers, shareholders,
directors, employees, subsidiaries, affiliates, divisions, successors or assigns. This Agreement
shall be afforded the maximum protection allowable under California
Evidence Code Section 1152
and/or any other state or Federal provisions of similar effect.
16. Entire Agreement: This Agreement constitutes the entire agreement between you and
Releasees with respect to the subject matter hereof and supersedes all prior negotiations and
agreements (including, but not limited to, your May 31, 2002 Amended Offer of Employment from the
Company), whether written or oral, relating to such subject matter, other than the confidentiality
agreement referred to in paragraph 6 above, the Options, any other equity incentive agreements, and
the Change of Control Agreement, each as modified hereby. You acknowledge that neither Releasees
nor their agents or attorneys have made any promise, representation or warranty whatsoever, either
express or implied, written or oral, which is not contained in this Agreement for the purpose of
inducing you to execute the Agreement, and you acknowledge that you have executed this Agreement in
reliance only upon such promises, representations and warranties as are contained herein.
17. Severability: The provisions of this Agreement are severable, and if any part of it is
found to be invalid or unenforceable, the other parts shall remain fully valid and enforceable.
Specifically, should a court, arbitrator, or government agency conclude that a particular claim may
not be released as a matter of law, it is the intention of the Parties that the general release,
the waiver of unknown claims and the covenant not to sue above shall otherwise remain effective to
release any and all other claims.
18. Modification: It is expressly agreed that this Agreement may not be altered, amended,
modified, or otherwise changed in any respect except by another written agreement that specifically
refers to this Agreement, executed by authorized representatives of each of the Parties.
19. Review of Agreement: You understand that you may take up to twenty-one (21) days to
consider this Agreement and, by signing below, affirm that you were advised to consult with an
attorney prior to signing this Agreement. You also understand you may revoke this Agreement within
seven (7) days of signing this Agreement and that the compensation to be paid to you pursuant to
Paragraph 3 will be paid only after that seven (7) day revocation period.
20. Effective Date: This Agreement is effective on the eighth (8th) day after you sign it and
without revocation by you.
If you agree to the terms outlined in this letter, please sign this letter below no earlier
than the Employment Termination Date, and also sign the attached copy and return it to me.
|READ, UNDERSTOOD AND AGREED
|/s/ John R. Sluis
|John R. Sluis
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT
In partial consideration and as a condition of my employment or continued employment with
Cepheid, a California
corporation (which together with any parent, subsidiary, affiliate, or
successor is hereinafter referred to as the Company), and effective as of the date that my
employment with the Company first commenced, I hereby agree as follows:
During my employment with the Company, I will perform for the Company such duties as it may
designate from time to time and will devote my full time and best efforts to the business of the
Company and will not, without the prior written approval of (i) an officer of the Company if I am
not an executive officer of the Company or (ii) the Board of Directors of the Company if I am an
executive officer of the Company, (a) engage in any other professional employment or consulting, or
(b) directly or indirectly participate in or assist any business which is a current or potential
supplier, customer, or competitor of the Company.
2. CONFIDENTIALITY OBLIGATION
I will hold all Company Confidential Information in confidence and will not disclose, use,
copy, publish, summarize, or remove from the premises of the Company any Confidential Information,
except (a) as necessary to carry out my assigned responsibilities as a Company employee, and (b)
after termination of my employment, only as specifically authorized in writing by an officer of the
Company. Confidential Information is all information related to any aspect of the business of the
Company which is either information not known by actual or potential competitors of the Company or
is proprietary information of the Company, whether of a technical nature or otherwise.
Confidential Information includes inventions, ideas, designs, computer programs, circuits,
schematics, formulas, algorithms, trade secrets, works of authorship, mask works; developmental or
experimental work, processes, techniques, improvements, know-how, data, financial information and
forecasts, product plans, marketing plans and strategies, and customer lists.
3. INFORMATION OF OTHERS
I will safeguard and keep confidential the proprietary information of customers, vendors,
consultants, and other parties with which the Company does business to the same extent as if it
were Company Confidential Information. I will not, during my employment with the Company or
otherwise, use or disclose to the Company any confidential, trade secret, or other proprietary
information or material of any previous employer or other person, and I will not bring onto the
Companys premises any unpublished document or any other property belonging to any former employer
without the written consent of that former employer.
4. COMPANY PROPERTY
All papers, records, data, notes, drawings, files, documents, samples, devices, products,
equipment, and other materials, including copies and in whatever form, relating to the business of
the Company that I possess or create as a result of my Company employment, whether or not
confidential, are the sole and exclusive property of the Company. In the event of the termination
of my employment, I will promptly deliver all such -materials to the Company and will sign and
deliver to the Company the Termination. Certificate attached hereto as Exhibit A.
5. OWNERSHIP OF INVENTIONS
All inventions, ideas, designs, circuits, schematics, formulas, algorithms, trade secrets,
works of authorship, mask works, developments, processes, techniques, improvements, and related
know-how which result flow work performed by me, alone or with others, on behalf of the Company or
from access to the Company Confidential Information or property whether or not patentable,
copyrightable, or qualified for mask work protection (collectively Inventions) shall be the
property of the Company, and, to the extent permitted by law, shall be works made for hire. I
hereby assign and agree to assign to the Company or its designee, without further consideration, my
entire right, title,
and interest in and to all Inventions, other than those described in Paragraph
6 of this Agreement, including all rights to obtain, register, perfect, and enforce patents,
copyrights, mask work rights, and other intellectual property protection for Inventions. I will
disclose promptly and in writing to the individual designated by the Company or to my
immediate supervisor all Inventions which I have made or reduced to practice. During my
employment and for four years after, I will assist the Company (at its expense) to obtain and
enforce patents, copyrights, mask work rights, and other fonts of intellectual property protection
6. EXCLUDED INVENTIONS
Attached is a list of all inventions, improvements, and original works of authorship which I
desire to exclude from this Agreement, each of which has been made or reduced to practice by me
prior to my employment by the Company. I understand that this Agreement requires disclosure, but
not assignment, of any invention that qualifies under Section 2870 of the California
Any provision in an employment agreement which provides that an employee shall assign
or Offer to assign any of his or her rights in an invention to his or her employer
shall not apply to an invention that the employee developed entirely on his or her own
time without using the employees equipment, supplies; facilities, or trade secret
information except for those inventions that either:
a) relate at the time of conception or reduction to practice of the invention to the
employers business or actual or demonstrably anticipated research or development of
the employer, or
b) result from any Work performed by the employee for the employer.
7. PATENT APPLICATIONS
If the Company files an original United States patent application covering any invention of
which I am a named inventor, I will receive an inventors fee of $100.
8. PRIOR CONTRACTS
I represent that there are no other contracts to assign inventions that are now in existence
between any other person or entity and me. I further represent that I have no other employments,
consultancies, or undertakings which would restrict and impair my performance of this Agreement.
9. AGREEMENTS WITH THE UNITED STATES GOVERNMENT AND OTHER THIRD PARTIES
I acknowledge that the Company from time to time may have agreements with other persons or
with the United States Government or agencies thereof which impose obligations or restrictions on
the Company regarding Inventions made during the course of work under such agreements or regarding
the confidential nature of such work. I agree to be bound by all such obligations or restrictions
and to take all action necessary to discharge the obligations of the Company thereunder.
10. NO EMPLOYMENT AGREEMENT
I agree that unless specifically provided in another writing signed by me and an officer of
the Company, my employment by the Company is not for a definite period of time. Rather, my
employment relationship with the Company is one of employment at will and my continued employment
is not obligatory by either myself or the Company.
11.1 Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of the State
excluding those laws that direct the application of the laws of another jurisdiction.
If any provision of this Agreement shall be determined to be invalid or unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the
parties to the extent possible. In any event, all other provisions of this Agreement, shall be
deemed valid, and enforceable to the full extent possible.
11.3 Injunctive Relief; Consent to Jurisdiction
I acknowledge and agree that damages will not be an adequate remedy in the event of a breach
of any of my obligations under this Agreement. I therefore agree that the Company shall be
entitled (without limitation of any other rights or remedies otherwise available to the Company and
without the necessity of posting a bond) to obtain an injunction from any court of competent
jurisdiction prohibiting the continuance or recurrence of any breach of this Agreement. I hereby
submit myself to the jurisdiction and venue of the courts of the State of California
of any such action. I further agree that service upon me in any such action or proceeding may be
made by first class mail, certified or registered, to my address as last appearing on the records
of the Company.
I further agree that the Company, at its option, may elect to submit any dispute or
controversy arising out of or related to this Agreement for final settlement by arbitration
conducted in Santa Clara County or San Mateo County in accordance with the then existing rules of
the American Arbitration Association, and judgment upon the award rendered by the arbitrators shall
be specifically enforceable and may be entered in any court having jurisdiction thereof.
11.5 Attorneys Fees
If any party seeks to enforce its rights under this Agreement by legal proceedings or
otherwise, the non prevailing party shall pay all costs and expenses of the prevailing party.
The waiver by the Company of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach of the same or any other provision hereof.
11.7 Binding Effect
This Agreement shall be binding upon and hall inure to the benefit of the successors,
executors, administrators, heirs, representatives, and assigns of the parties.
The Section headings herein are intended for reference and shall not by themselves determine
the construction or interpretation of this Agreement.
11.9 Entire Agreement: Modifications
This Employee Confidential Information, and Inventions Agreement contains the entire agreement
between the Company and the undersigned employee concerning the subject matter hereof and
supersedes any and all prior and contemporaneous negotiations, correspondence, understandings, and
agreements, whether oral or written, respecting that subject matter. All modifications to this
Agreement must be in writing and signed by the party against whom enforcement of such modification
IN WITNESS WHEREOF, I have executed this document as of the 4th day of June 2002.
|| /s/ John R. Sluis
||/s/ E. Heywood
§ 2870. Application of provision providing that employee shall assign or offer to assign rights in
invention to employer.
(a) Any provision in an employment agreement which provides that an employee shall assign, or offer
to assign, any of his or her rights in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own time without using the employers
equipment, supplies, facilities, or trade secret information except for those inventions that
(1) Relate at the time of conception or reduction to practice of the invention to the employers
business, or actual ox demonstrably anticipated research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign
an invention otherwise excluded from being required to be assigned under subdivision (a), the
provision is against the public policy of this state and is unenforceable.
Added Stats 1979 ch 1001 § 1; Amended Stats 1986 ch 346 § 1.
(Excluded Inventions, Improvements, and
Original Works of Authorship)
||Identifying Number or
This is to certify that I do not have in my possession, nor have I. failed to return, any
papers, records, data, notes, drawings, files, documents, samples, devices, products, equipment,
designs, computer programs, and other materials, including reproductions of any of the
aforementioned items, belonging to Cepheid, its subsidiaries, affiliates, successors, or assigns
(together, the Company).
I further certify that I have complied with all the terms of the Companys Employee
Confidential Information and Inventions Agreement signed by me, including the reporting of any
Inventions (as defined therein) conceived or made by me (solely or jointly with others) covered by
I further agree that, in compliance with the Employee Confidential Information and Inventions
Agreement, I will hold in confidence and will not disclose, use, copy, publish, or summarize any
Confidential Information (as defined in the Employee Confidential Information and Inventions
Agreement) of the Company or of any of its customers, vendors, consultants, and other parties with
which it does business.
||/s/ John R. Sluis
||John R. Sluis
||Type/Print Employees Name