ADVISORY AGREEMENT
This ADVISORY AGREEMENT (the "Agreement") is entered into by and between lllumina, Inc. (the "Company") and Charles Dadswell ("Executive") effective on the date of Executive’s signature of execution, for the purpose of
providing a smooth, professional and effective transition of Executive’s duties and responsibilities in connection with Executive’s mutually agreed separation from the Company.
A. Executive's service to the Company as General Counsel and Secretary shall end
effective October 3, 2024 and Executive shall transition to the role of Sr VP, Advisor to the Chief Executive Officer and Board of Directors.
B. The Company wishes for Executive to remain an employee-advisor to the Chief
Executive Officer and Board of Directors, and Executive has agreed to serve as an employee-advisor, for the period October 3, 2024 through March 31, 2025 (the "Advisory Period").
C. Executive’s employment will end March 31, 2025 (the “Separation Date”), unless mutually extended by the Company and the Executive.
THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as follows:
1. Duties During the
Advisory Period. During the Advisory Period, Executive shall be available to and perform the duties as an advisor to the Company’s Chief Executive Officer and Board of Directors in order to (a) assist in transitioning the duties and
responsibilities of General Counsel of the Company and (b) provide advice, and other reasonable assistance, on matters of the Company as reasonably requested by the Company’s Chief Executive Officer. Notwithstanding the generality of the services
provided, Executive shall solely report to the Company’s Chief Executive Officer, and have no responsibilities to, or with, the Legal Department or other Company employees and shall not be required to work full-time during the Advisory Period.
2. Compensation.
(a) Except as provided herein, so long as Executive remains employed by the
Company, maintains employment in good standing, complies with Illumina’s Code of Conduct, and reasonably completes the items as listed in paragraph "1."as determined by the Company’s Chief Executive Officer, Executive shall be entitled to receive
$600,000, payable in a lump sum within thirty days after the Separation Date (the "Payment")The Payment is in addition to Executive's normal compensation and benefits which will
continued to be paid during the Advisory Period.
(b) If the Company terminates Executive without Cause prior to the Separation
Date, Executive shall receive the Payment.
(c) If Executive's employment with the Company terminates due to breach of the
Company’s Code of Conduct, Executive shall not receive the Payment, but will still receive any other compensation or benefits that are earned through the date of such termination.
3. Release.
By signing below Executive hereby releases, waives, acquits and forever discharges, to the fullest extent permitted by law, the Company and its respective
affiliates, officers, directors, managers, members, partners, employees, attorneys, agents and other representatives (together, collectively, "Representatives," and each, individually,
a "Representative") (together, collectively, the "Released Parties," and each, individually, a "Released Party") from all claims, charges, complaints, actions, causes of action, damages, agreements, judgments, debts, dues, suits and liability of any kind or nature whatsoever, whether known or unknown,
whether suspected or not, whether arising by virtue of contract or intentional or unintentional tort, or by virtue of any federal, state or local statute, ordinance, law, regulation, order or decree, or otherwise, including, without limitation, all
claims, if any, arising directly or indirectly out of or in any way connected with Executive's employment or any other relationship Executive has with the Company or with any of the other Released Parties, and whether at law or in equity, which
Executive ever had, now has, or may have against any Released Party by reason of any matter, cause or thing whatsoever that have arisen, or may have arisen, or that have been or could have been asserted in any court or forum by Executive as of the
date of this Agreement, whether directly, representatively, derivatively, individually or in any other capacity, from the beginning of time to and including this day, resulting or arising from, or relating to or in connection with, the Company. For
the sake of clarity, this general release shall not apply to claims arising after the date of this Agreement and this release of claims excludes any release of claims under the Age Discrimination in Employment Act and any claims that may not be
released in this manner (including, without limitation, workers' compensation and state unemployment claims) and does not release any claims Executive might have to receive an award for information provided to the Securities and Exchange Commission
or any claims Executive has with respect to the Payment or with respect to the payments and benefits that may be paid in connection with Executive’s continued employment with the Company pursuant to this Agreement. For avoidance of doubt, this
release does not release or waive prospective rights or claims that may arise after the effective date of this agreement or the Separation Agreement and the General Release of Claims.
Waiver.
In granting the release herein, Executive acknowledges and understands that this Agreement includes a release of all claims known or unknown, and that the laws of
some jurisdictions afford rights and benefits upon releasing parties with respect to the release of unknown claims, including, without limitation, Section 1542 of the California Civil
Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
In giving this release, which includes claims that may be unknown to Executive at present, Executive acknowledges that Executive (A) has read and understands Section 1542 of the California Civil Code, (B) has had an opportunity to discuss with Executive's own counsel such provision and any similar provisions of the applicable laws of any other
jurisdiction (or has elected not to consult with counsel) and (C) expressly waives and relinquishes all rights and benefits under Section 1542 of the California Civil Code and any law
of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims Executive has, had or may have against the Released Parties.
4. No Separate Accounting.
The Payment will be paid out of the Company's general assets. No amounts will be set aside in a trust or separate account.
5. Applicable Law.
The provisions of this Agreement shall be construed and interpreted according to the laws of the State of California without regard to conflict of law principles.
6. Severability; Entire
Agreement; Amendment. If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect. The Company and Executive acknowledge and agree that this Agreement constitutes the
entire agreement between the Company and Executive with respect to the subject matter hereof. This Agreement may not be modified, altered, or changed except by a written agreement signed by the Company and Executive.
7. Withholding.
The Payment are subject to reduction in order to comply with applicable federal, state, and local tax withholding requirements and shall be reflected on Executive's Form W-2 for the year in which such payment, if any, are made.
8. No Guarantee of
Employment. This Agreement is not an employment policy or contract. It does not give Executive the right to remain an employee of the Company, nor does it interfere with Company's right to discharge Executive according to provision
of this agreement. It also does not require Executive to remain an employee nor interfere with Executive's right to terminate employment at any time.
9. Confidentiality. Executive and Company agree that the terms and
conditions of this Agreement, the circumstances regarding the Executive’s departure from the Company, the events, including all negotiations, leading to this Agreement shall remain confidential as between the parties, and neither Executive nor
Company shall disclose them to any other person, including but not limited to any current or former Illumina employees or any third-parties. Notwithstanding the foregoing, (i) Executive and Company may make truthful statements required to be
made by law or legal process or in a dispute between the parties where such statements are relevant to such dispute, (ii) Executive may make statements that are protected by law, including those protected by Section 21F of the Securities Exchange
Act of 1934, as amended, and other whistleblower protection laws and statements that are permitted under the last sentence of Section 10 of this Agreement and (iii) Company may make non-public, truthful statements to individuals in a limited
“need to know” group, provided that Company agrees to take reasonable steps to instruct such individuals of the confidential nature of those circumstances. Executive and Company agree that they will not respond to, or contribute to any public
discussion or other publicity concerning, or in any way relating to, execution of this Agreement or the events, including any negotiations, leading to its execution other than statements that are consistent with those in the Company’s Current
Report on Form 8-K and its press release relating to the departure. Without limiting the foregoing, the Executive may disclose the monetary aspects of this Agreement to Executive’s attorneys or financial advisors provided Executive informs them
of this confidentiality provision. A violation of this Confidentiality provision shall be a material breach of this Agreement.
10. Non-Disparagement. Neither Executive, nor anyone subject to
Executive’s direction or control, nor the Company, its Board members and executive officers will make any negative, derogatory or disparaging statement, publications or comments, regarding the other party, including as to Executive’s employment
with the Company, conduct or performance with the Company or any aspect of Executive’s employment or reputation, or the business reputation or business practices of the Company and/or the Released Parties, on the one hand, and the Executive, on
the other hand, to any person or entity. Notwithstanding the foregoing, either party may make any statements permitted by the second sentence of Section 9 of this Agreement. Further, nothing in this Agreement is intended to suppress or limit
Executive’s right to testify in any administrative, legislative or judicial forum about alleged criminal or unlawful conduct or sexual harassment, or to prevent the disclosure of factual information related to unlawful acts in the workplace, such
as civil or administrative action regarding sexual assault, sexual harassment or other form of sex-based workplace harassment, discrimination or retaliation, to the extent such communications are protected under California law.
11. Section 409A Compliance.
It is intended that this Agreement and the payments due pursuant to this Agreement are exempt from Section 409A of the Internal Revenue Code. Each provision of this Agreement shall be interpreted in a manner consistent with this intent.
Nevertheless, the Company cannot, and does not, guarantee any particular tax effect or treatment of the amounts due under this Agreement. Except for the Company's responsibility to withhold applicable income and employment taxes from compensation
paid or provided to Executive, the Company will not be responsible for the payment of any applicable taxes on compensation paid or provided to Executive.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the parties hereto have duly executed this Agreement effective as of the day and year first above written.
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EXECUTIVE:
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By:
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/s/ Charles Dadswell |
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Name:
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Charles Dadswell
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Date:
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October 3, 2024
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COMPANY: ILLUMINA, INC.
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By:
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/s/ Patricia Leckman
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Name:
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Date:
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October 3, 2024
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Illumina, Inc.
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5200 Illumina Way
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San Diego, CA 92122 USA
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tel 858.202.4500
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fax 858.202.4766
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www.illumina.com
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SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of All Claims (“Agreement”) is made by and between Illumina, Inc. (“Illumina” or “the Company”) and Charles Dadswell
(“Employee”), collectively (“the Parties”), with respect to the following facts:
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A. |
Employee has been employed by Company in the role of employee advisor to Illumina’s Chief Executive Officer, and Board of Directors.
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Employee’s employment is expected to end effective March 31, 2025 or on a date prior thereto due to the Company’s termination of
Employee without Cause (as defined in Employee's Change in Control Severance Agreement) (such termination, a “Qualifying Termination”, and the applicable date of termination, the “Separation Date”).
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As additional consideration for Employee’s services as an employee advisor, the Company wishes to provide Employee with the payments and benefits as described below.
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Employee will also receive all compensation, wages, commissions, equity awards, bonuses, and expense reimbursements earned and owed to Employee by the Company as of the Separation Date upon the
Separation Date.
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THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as follows:
1. Severance Benefits.
1.1 Severance. The Company agrees to pay Employee a Severance Payment
equivalent to fifty-two (52) weeks of Employee’s normal wages, in the gross amount of $620,000 less all appropriate federal and state tax withholdings, an amount to which Employee is not otherwise entitled absent his execution and non-revocation of
this Agreement (“Severance Payment”). Employee acknowledges and agrees that this Severance Payment constitutes adequate legal consideration for the promises and representations made by Employee in this Agreement. Subject to the provisions below, the
Severance Payment will be made in a lump sum payment within thirty days after the latest of the following: (1) the Effective Date of this Agreement (as described in paragraph 8.4 below); (2) after signing this Agreement, Employee has returned the
Agreement to Patricia Leckman at Illumina at pleckman@illumina.com by the deadline described in paragraph 10 below; (3) Employee has timely returned to Illumina all company property in Employee’s possession, custody, or control (according to
paragraph 11); (4) The Separation Date; (5) March 31, 2025; and (6) if applicable, the date the Reaffirmation Agreement (Exhibit A) has become effective and irrevocable.
1.2 The Company agrees to pay the cost of premiums for continued medical,
prescription drug, dental and vision insurance coverage through the provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), for an additional period of twelve (12) months following the termination of Employee’s benefits.
Employee acknowledges and agrees that Employee is not entitled to this COBRA benefit, and will receive this benefit solely by virtue of Employee’s execution and non-revocation of this Agreement. These sums will be paid directly to Illumina’s
carrier. Employee agrees to complete all required elections to continue coverage under COBRA. Thereafter, Employee may elect to continue such benefits at Employee’s own expense under the provisions of COBRA. The Company will not pay for
out-of-pocket medical expenses should the Employee fail to timely and properly elect continuation of coverage through COBRA. The Company agrees to pay the cost of Employee's executive physical exam once for the period of twelve (12) months
following the Separation Date.
Initial When Reviewed:
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1.3 The Company agrees to provide Executive outplacement career transition
services. Upon execution and non-revocation of this Agreement, Employee shall receive additional details of this benefit directly from the Company’s provider. The Employee may initiate career transition services prior to the termination date.
However, if this Separation Agreement is not fully executed, the employee will assume costs for these services. Services must be initiated no later than 90-days after the Separation Date.
1.4 If unpaid prior to the Separation Date, Company agrees to pay the 2024
Variable Compensation bonus based on the Company’s performance and per the terms of the plan.
1.5 Notwithstanding anything in this Agreement to the contrary, this Agreement
will be of no force or effect in the event that Employee’s termination of employment from the Company does not constitute a Qualifying Termination.
2. General Release.
In exchange for the consideration provided in paragraph 1 of this Agreement, Employee agrees to the following:
2.1 Employee unconditionally, irrevocably, and absolutely releases and discharges
the Company, and any parent and subsidiary corporations, divisions, and other affiliated entities of the Company, past and present, as well as the Company’s employees, officers, directors, agents, attorneys, successors, and assigns of the Company
(collectively, “Released Parties”), from all claims related in any way to the transactions or occurrences between them to date to the fullest extent permitted by law including, but not limited to, Employee’s employment with the Company, the
termination of Employee’s employment, and all other losses, liabilities, claims, demands, and causes of action, known or unknown, suspected or unsuspected, arising directly or indirectly out of, or in any way connected with, Employee’s employment
with or termination from the Company. This release is intended to have the broadest possible application and includes, but is not limited to, any claims under any state law, tort, contract, common law, constitutional or other statutory claims; any
claim for unpaid wages, commissions, bonuses or other employment benefits, including claims for unvested stock options or incentive/bonus compensation (including claims for unvested equity awards and/or benefits under the Variable Compensation
Plans); any claims for penalties, damages, or awards of any kind, including without limitation liquidated damages and statutory penalties; as well as any alleged violations of any federal, state, or local laws that may govern Employee’s employment,
including, without limitation, the California Labor Code or the federal Fair Labor Standards Act; Title VII of the Civil Rights Act of 1964; the Family and Medical Leave Act; the California Family Rights Act; the Worker Adjustment and Retraining
Notification Act (including any similar state statute); the Sarbanes-Oxley Act of 2002; the California Fair Employment and Housing Act; the Americans with Disabilities Act; the Age Discrimination in Employment Act of 1967, as amended; all claims
for attorneys’ fees, costs, and expenses; and any other action, whether cognizable in law or in equity, based upon any conduct up to and including the date of Employee’s signature on this Agreement. However, this release shall not apply to claims
for workers’ compensation benefits, unemployment insurance benefits, or any other claims that cannot lawfully be waived, nor to Employee’s rights to indemnification, and advancement of legal fees as may be required, as a former officer of the
Company, Employee’s right to enforce the terms of this Agreement, any rights Employee might have to receive an award for information provided to the Securities and Exchange Commission Employee’s rights as a shareholder of the Company and Employee’s
rights to any employee benefits accrued for Employee and as to which he has a right following his separation from employment.
Initial When Reviewed:
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2.2 Employee acknowledges that Employee may discover facts or law different from,
or in addition to, the facts or law that Employee knows or believes to be true with respect to the claims released in this Agreement and agrees, nonetheless, that this Agreement and the release contained in it shall be and remain effective in all
respects notwithstanding such different or additional facts or the discovery of them.
2.3 Employee declares and represents that Employee intends this Agreement to be
final and complete and not subject to any claim of mistake. Employee executes this release with the full knowledge that this release covers all possible claims against the Released Parties, to the fullest extent permitted by law.
2.4 Nothing in this Agreement prohibits employee from filing a claim or charge
with a federal, state, or local agency relating to Employee’s employment with the Company, or participating in government investigations or actions. However, Employee expressly waives Employee’s right to recover any type of personal relief from the
Company, including monetary damages or reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by Employee or on Employee’s behalf by an administrative agency, related in any way to the matters
released herein. Nothing in this paragraph is intended to prevent or discourage the Employee from communicating with or providing information to any state or federal governmental agency, nor is it intended to impede Employee’s rights to recover any
rewards or other payments as may be provided for under applicable law.
2.5 Employee declares and represents that as of the Effective Date of this
Agreement, Employee is not aware of any violations of any applicable rules, regulations and/or laws by Company or any employee of Company; or that if he is aware of or is concerned about any such violations, Employee has reported those to the
Company.
3. California Civil Code
Section 1542 Waiver. Employee expressly acknowledges and agrees that all rights under section 1542 of the California Civil Code are expressly waived. That section provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Employee understands that Employee is a “creditor” within the meaning of section 1542.
4. Representation Concerning
Filing of Legal Actions. Employee represents that, as of the date of this Agreement, Employee has not filed any lawsuits, complaints, petitions, claims, or other accusatory pleadings against the Company or any of the other Released
Parties in any court or arbitral forum. Employee further agrees that, to the fullest extent permitted by law, Employee will not prosecute in any court or arbitral forum, whether state or federal, any claim or demand of any type related to the
matters released above, it being the intention of the parties that with the execution of this release, the Released Parties will be absolutely, unconditionally, and forever discharged of and from all obligations to or on behalf of Employee related
in any way to the matters discharged herein. Nothing in this Agreement shall prevent Employee from complying with a lawfully issued subpoena, filing an administrative charge with a state or federal governmental agency, or from communicating with or
providing information to a state or federal governmental agency.
Initial When Reviewed:
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5. Non-Disclosure.
After the Separation Date, Employee will continue to be bound by Employee’s Proprietary Information and Invention Agreement (“PIIA”).
5.1 Notwithstanding anything contained herein, or any other confidentiality
obligation to which Employee may be or may have been subject to as a result of Employee’s employment with the Company, including Employee’s PIIA, nothing shall prohibit Employee from communicating with government authorities regarding possible
legal violations as provided by law.
5.2 Employee is advised that pursuant to the Defend Trade Secrets Act, an
individual shall not be held criminally or civilly liable under any federal or trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
However, Employee understands that in the event the disclosure of Company’s trade secrets is not done in good faith pursuant to the above, Employee will be subject to damages, including punitive damages and attorneys’ fees.
6. No Admissions.
By entering into this Agreement, the Released Parties make no admission that they have engaged, or are now engaging, in any unlawful conduct. The parties understand and acknowledge that this Agreement is not an admission of liability and shall not
be used or construed as such in any legal or administrative proceeding.
7. Agreement to Cooperate.
Employee agrees that Employee will, in good faith and with reasonable diligence, assist in, facilitate, and cooperate with the Company and provide information as to matters which Employee was personally involved, or has information on, while
Employee was an employee of the Company and which become the subject of an action, investigation, proceeding, litigation, or otherwise. Employee agrees to be available, upon reasonable notice, to be interviewed, give sworn testimony and statements,
declarations, trial testimony, and other such disclosures. Nothing herein is intended or should be construed as requiring anything other than Employee’s cooperation in providing truthful and accurate information. Company will reimburse Employee’s
reasonable expenses, related to such cooperation based upon Employee’s submission of receipts.
8. Older Workers’ Benefit
Protection Act. This Agreement is intended to satisfy the requirements of the Older Workers’ Benefit Protection Act, 29 U.S.C. sec. 626(f). The following general provisions, along with the other provisions of this Agreement, are
agreed to for this purpose:
8.1 Employee acknowledges and agrees that Employee has read and understands the
terms of this Agreement.
8.2 Employee is advised that Employee should consult with an attorney before
signing this Agreement, and Employee acknowledges that Employee has obtained and considered any legal advice Employee deems necessary, such that Employee is entering into this Agreement freely, knowingly, and voluntarily.
8.3 Employee acknowledges that Employee has been given a period beginning with date this Agreement has been provided to Employee and
ending on the day that is twenty-one calendar days after the Separation Date in which to consider whether or not to enter into this Agreement (“Consideration Period”). Employee understands that, at Employee’s option, Employee may elect not to use the
full Consideration Period. If Employee signs and returns this Agreement prior to the expiration of the Consideration Period, Employee acknowledges that Employee has done so freely, knowingly, and voluntarily..
Initial When Reviewed:
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8.4 This Agreement shall not become effective or enforceable until the eighth day
after Employee signs this Agreement. In other words, Employee may revoke Employee’s acceptance of this Agreement within seven days after the date Employee signs it (“Revocation Period”). Employee's revocation must be in writing and received by
Patricia Leckman of Illumina no later than the conclusion of the Revocation Period in order to be effective. If Employee does not revoke Employee’s acceptance within the Revocation Period, Employee's acceptance of this Agreement shall become
binding and enforceable on the eighth day (“Effective Date”).
8.5 This Agreement does not waive or release any rights or claims that Employee
may have under the Age Discrimination in Employment Act that arise after the execution of this Agreement.
8.6 Although Employee may sign this Agreement at any time during the Consideration Period, if Employee signs this
Agreement prior to the Separation Date, this Agreement shall be null and void, and the benefits hereunder shall not be paid or provided, unless Employee signs and does not revoke a Reaffirmation Agreement (Exhibit A).
9. Severability. In
the event any provision of this Agreement shall be found unenforceable by a court of competent jurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended
that the Released Parties shall receive the benefits contemplated herein to the fullest extent permitted by law. If a deemed modification is not satisfactory in the judgment of such court, the unenforceable provision shall be deemed deleted, and
the validity and enforceability of the remaining provisions shall not be affected thereby.
10. Deadline For Agreement
Execution. This Agreement constitutes an offer to Employee, which must be accepted by Employee and returned to the Company by no later than the conclusion of the Consideration Period described in paragraph 8.3, above, after which
date the offer made herein shall lapse and be of no further force or effect.
11. Return of Company Property.
Employee understands and agrees that as a condition of receiving the severance benefits described in paragraph 1 of this Agreement, all Company property still in Employee’s possession, including any Proprietary Information or Company Documents, if
any, must be immediately returned to the Company. By signing this Agreement, Employee represents and warrants that Employee has or will have returned such Company Property no later than the Separation Date, including any Company issued or provided
credit cards, computers, vehicles, tangible property and equipment, keys, entry cards, identification badges, telephones, PDAs, and all documents, files, folders, correspondence, memoranda, notes, notebooks, drawings, books, records, plans,
forecasts, reports, proposals, agreements, financial information, computer-recorded information, as well as all copies thereof, electronic or otherwise. Employee agrees and acknowledges that Employee shall not intentionally delete any data from
any Company device, nor destroy any Company property, prior to its return. Employee’s business cell phone number will remain the property of the Employee upon the end of the Employee’s employment with the Company. The Company will provide
reasonable assistance to Employee to transfer the number to Employee.
12. Applicable Law.
The validity, interpretation, and performance of this Agreement shall be construed and interpreted according to the laws of the United States of America and the State of California.
13. Binding on Successors;
Full Defense. The parties agree that this Agreement shall be binding on, and inure to, the benefit of Employee or Employee’s successors, heirs and/or assigns.
Initial When Reviewed:
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14. Full Defense.
This Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction against, any action, suit, or other proceeding that may be prosecuted, instituted, or attempted by Employee in breach hereof. Employee agrees
that in the event an action or proceeding is instituted by the Released Parties in order to enforce the terms or provisions of this Agreement, the Released Parties shall be entitled to an award of reasonable costs and attorneys’ fees incurred in
connection with enforcing this Agreement. The terms of this paragraph shall not apply to an action by Employee to challenge the enforceability of Employee’s waiver of rights under the Age Discrimination in Employment Act.
15. Good Faith. The
parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and effectuate the terms and purposes of this Agreement.
16. Entire Agreement;
Integration. This Agreement contains the entire agreement between the Company and the Employee on the subjects addressed in this Agreement and replaces any other prior agreements or representations, whether oral or written, between
them, provided, however, that any proprietary information agreement executed by Employee remains in full force and effect and is not superseded by this Agreement.
17. Modification; Counterparts.
This Agreement may be amended only by a written instrument executed by all parties hereto. This Agreement may be executed in counterparts and shall be binding on all parties when each has signed either an original or copy of this Agreement.
18. Confidentiality.
The Employee and the Company agree that the terms and conditions of this Agreement, the circumstances regarding the Employee's departure from the Company, the events, including all negotiations, leading to this Agreement shall remain confidential
as between the parties, and neither the Employee nor the Company shall disclose them to any other person, including but not limited to any current or former Illumina employees or any third-parties. Notwithstanding the foregoing, (i) the Employee
and the Company may make truthful statements required to be made by law or legal process or in a dispute between the parties where such statements are relevant to such dispute, (ii) the Employee may make statements that are protected by law,
including those protected by Section 21F of the Securities Exchange Act of 1934, as amended, and other whistleblower protection laws and statements that are permitted under the last sentence of Section 19 of this Agreement and (iii) the Company
may make non-public, truthful statements to individuals in a limited "need to know" group, provided that the Company agrees to take reasonable steps to instruct such individuals of the confidential nature of those circumstances. The Employee and
the Company agree that they will not respond to, or contribute to any public discussion or other publicity concerning, or in any way relating to, execution of this Agreement or the events, including any negotiations, leading to its execution
other than statements that are consistent with those in the Company's Current Report on Form 8-K and its press release relating to the departure. Without limiting the foregoing, the Employee may disclose the monetary aspects of this Agreement to
the Employee's attorneys or financial advisors provided the Employee informs them of this confidentiality provision. A violation of this Confidentiality provision shall be a material breach of this Agreement.
19. Non-Disparagement.
Neither the Employee, nor anyone subject to the Employee's direction or control, nor the Company, its Board members and executive officers will make any negative, derogatory or disparaging statement, publications or comments, regarding the other
party, including as to the Employee's employment with the Company, conduct or performance with the Company or any aspect of the Employee's employment or reputation, or the business reputation or business practices of the Company and/or the
Released Parties, on the one hand, and the Employee, on the other hand, to any person or entity. Notwithstanding the foregoing, either party may make any statements permitted by the second sentence of Section 18 of this Agreement. Further,
nothing in this Agreement is intended to suppress or limit Employee's right to testify in any administrative, legislative or judicial forum about alleged criminal or unlawful conduct or sexual harassment, or to prevent the disclosure of factual
information related to unlawful acts in the workplace, such as a civil or administrative action regarding sexual assault, sexual harassment or other forms of sex-based workplace harassment, discrimination or retaliation, to the extent such
communications are expressly protected under California law.
Initial When Reviewed:
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20. Section 409(A) of the
Internal Revenue Code.
20.1 This Agreement is intended to comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) or an exemption thereunder and shall be construed and administered in accordance with Section 409A of the Code. Any payments under this Agreement that may be excluded from Section 409A of the Code
either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A of the Code to the maximum extent possible. For purposes of Section 409A of the Code, each installment payment
provided under this Agreement shall be treated as a separate payment. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no
event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by Employee on account of non-compliance with Section 409A of the Code.
20.2 Notwithstanding anything herein to the contrary, if Employee is a “Specified
Employee,” for purposes of Section 409A of the Code, on the date on which Employee incurs a Separation from Service, any payment or benefit provided in this Agreement that provides for the “deferral of compensation” within the meaning of Section
409A of the Code shall not be paid or provided or commence to be paid or provided on any date prior to the first business day after the date that is six months following Employee’s “Separation from Service” (the “409A Suspension Period”); provided,
however, that a payment or benefit delayed pursuant to the preceding clause shall commence earlier in the event of Employee’s death prior to the end of the six-month period. Within 14 calendar days after the end of the 409A Suspension Period,
Employee shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence. Thereafter, Employee shall receive any remaining benefits as if there had not been an earlier delay. For purposes of this Agreement,
“Separation from Service” shall have the meaning set forth in Section 409A(a)(2)(i)(A) of the Code and shall be determined in accordance with the default rules under Section 409A Code. “Specified Employee” shall have the meaning set forth in
Section 409A(a)(2)(B)(1) of the Code, as determined in accordance with the uniform methodology and procedures adopted by the Company and then in effect. Company will notify employee immediately should any payment fall under this provision of
the Settlement Agreement.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON
THE DATES SHOWN BELOW.
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Dated:
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October 3, 2024
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By:
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/s/ Charles Dadswell |
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Charles Dadswell
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Dated:
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October 3, 2024
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By:
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/s/ Patricia Leckman |
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Patricia Leckman
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Human Resources
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Illumina, Inc.
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Initial When Reviewed:
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