exv10w34






EXHIBIT 10.34




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 22nd 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:




     1. Agreement Term



          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.




     2. Change in Control



          For purposes of this Agreement, “Change in Control” shall mean the occurrence of one
of the following during the Agreement Term:





	 	(a)	 	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




 









 






	 	 	 	substantially all of the Company’s common stock in substantially the same
proportions as immediately prior to such transaction);






	 	(b)	 	the sale of all or substantially all of the Company’s assets to any other
person or entity (other than a wholly-owned subsidiary);
	 
	 	(c)	 	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);
	 
	 	(d)	 	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
	 
	 	(e)	 	any other event specified by the Board.





     3. Covered Terminations




	 	(a)	 	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”):






	 	(i)	 	termination of employment by the Company other than for
“Cause” (as defined in Section 3(b) below); or
	 
	 	(ii)	 	termination of employment by the Executive on account of
“Good Reason” (as defined in Section 3(c) below).





          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”).





	 	(b)	 	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:






	 	(i)	 	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;
	 
	 	(ii)	 	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
	 
	 	(iii)	 	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.





          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.





	 	(c)	 	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:






	 	(i)	 	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;
	 
	 	(ii)	 	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




 









 






	 	(iii)	 	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.





          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.




     4. Severance Benefits



          In the event that the Executive’s employment with the Company is terminated during the
Protection Period in a manner that constitutes a Covered Termination under Section 3 hereof, the
Company shall provide the Executive with the following payments and benefits:





	 	(i)	 	Severance Payment. The Executive shall receive a
lump-sum cash severance payment in an amount equal to one time the sum of (A)
the Executive’s then-current annual base salary amount, plus (B) the greater
of (1) the Executive’s then-current annual target bonus or other annual target
incentive amount or (2) the amount of the annual bonus or other incentive paid
or payable to the Executive for the most recently completed fiscal year;
determined in each case as provided above without regard to any deductions,
withholdings or deferrals of base salary or annual bonus or other incentive
and disregarding any reductions in base salary or annual bonus or other
incentive that are the basis for a Good Reason termination. The lump-sum
severance amount shall be paid by the Company within 15 days following the
effective date of the Covered Termination.
	 
	 	(ii)	 	Accrued Rights. The Executive shall receive, within
15 days following the effective date of the Covered Termination, a lump-sum
cash payment equal to the sum of (A) the Executive’s earned but unpaid base
salary through the date of the Covered Termination, (B) any earned but unpaid
bonus or other incentive payment for any completed fiscal year prior to the
year of the Covered Termination, (C) a pro-rata portion of the Executive’s
annual target bonus or other annual target incentive for the fiscal year in
which the termination occurs, based on the portion of the fiscal year for
which the Executive was employed and assuming performance under the bonus or
other incentive plan at the applicable target levels, and (D) any other
amounts due to the Executive from the Company as of the date of the Covered
Termination, including any unreimbursed business expenses. The Executive
shall also be entitled to all payments and rights under all employee benefit
plans, fringe benefit programs and payroll practices of the Company in
accordance with their terms. Notwithstanding the foregoing, all payments
under this Section 4(ii) shall be paid or made within 15 days following the
effective date of the Covered Termination.




 









 






	 	(iii)	 	Welfare Benefits. The Executive (and the
Executive’s eligible dependents) shall be entitled to continued medical and
dental coverage and benefits under the Company’s group benefit plans for a
period of 12 months following the Executive’s Covered Termination, to be
provided on the same terms, and with the same Executive cost-sharing, as
active Executives of the Company are provided during this period of continued
benefits.
	 
	 	(iv)	 	Equity Rights. All stock options or other equity or
equity-based awards that are held by the Executive at the time of the Change
in Control that have not previously become vested and (if applicable)
exercisable shall, upon the Covered Termination, become immediately and fully
vested and exercisable, and any repurchase or similar rights held by the
Company or other restrictions on the awards shall lapse, without regard to the
terms of any applicable award agreement or plan document, and such awards
shall otherwise continue to apply on the same terms.
	 
	 	(v)	 	Indemnification. The Executive shall continue to be
entitled, in respect of any period that the Executive served as an officer or
director of the Company, and effective until the expiration of all applicable
statute of limitations periods, to (i) all indemnification rights provided
under any indemnification agreements between the Executive and the Company or
provided by the Company’s Certificate of Incorporation and By-Laws or
otherwise in effect at the time of the Covered Termination and (ii) coverage
under any officers’ and directors’ liability insurance policy in effect at the
time of the Covered Termination.
	 
	 	(vi)	 	Perquisites. The Executive shall be entitled to the
continuation of all executive perquisites to which the Executive was entitled
immediately prior to the date of the Covered Termination for a period of 12
months following the date of such Covered Termination, to be provided on the
same terms, and at the same cost to the Executive, as active executives of the
Company are provided during this period.
	 
	 	(vii)	 	Outplacement. The Executive shall be provided, at
the Company’s sole expense, with professional outplacement services consistent
with the Executive’s duties or profession and of a type and level customary
for persons in the Executive’s position, as selected by the Company for a
maximum period of two (2) years following the Executive’s Covered Termination.
	 
	 	(viii)	 	Payments. Notwithstanding the foregoing, if the Executive is a
“specified employee” within the meaning of Section 409A of the Code at
the time of a Covered Termination, any portion of the payments under this
Section 4 due hereunder during the first (6) months following the date of the
Executive’s Covered Termination, to extent that such payments constitute
“deferred compensation” under Section 409A of the Code, shall not be
paid during such six-month period and instead shall be paid on the first
business day following the expiration of such six-month period. The remaining
portion of the payments due hereunder shall be paid as provided in the
applicable provisions of this Section 4.




 









 






	 	(ix)	 	Reimbursements. All reimbursements and in-kind
benefits provided under this Agreement, shall be made or provided in
accordance with the requirements of Section 409A of the Code, including, where
applicable, the requirement that (A) any reimbursement shall be for expenses
incurred during a specified period, (B) the amount of expenses eligible for
reimbursement, or in-kind benefits provided, during a calendar year may not
affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other calendar year, (C) the reimbursement of an eligible
expense shall be made on or before the last day of the calendar year following
the year in which the expense is incurred (or such earlier date if specified
in this Agreement), and (D) the right to reimbursement or in-kind benefits is
not subject to liquidation or exchange for another benefit.





     5. Parachute Payment Limitation



          Notwithstanding anything in this Agreement to the contrary, if it shall be determined that any
amount, right or benefit payable by the Company or any other person or entity to or for the
Executive’s benefit in connection with the Change in Control, whether pursuant to the terms of this
Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, and if it shall be determined that a
reduction of the Payments to a present value that is one dollar less than the minimum present value
that would result in the imposition of such excise tax would result in a larger after-tax benefit
to Executive than if such reduction had not occurred, then the Payments shall be reduced so as to
have a present value that is one dollar less than the minimum present value that would result in
the imposition of such excise tax. If the foregoing should result in a reduction in the Payments,
the reduction shall be applied first against all cash Payments and then, if necessary, against
non-cash Payments in order to satisfy the requirements of this Section 5. All determinations
concerning the application of this Section 5 shall be made by a nationally recognized accounting
firm to be appointed by the Company. The determinations of the accounting firm shall be conclusive
and binding on the parties hereto for all purposes. All fees and expenses of the accounting firm
shall be paid by Company.




     6. Enforceability




	 	(a)	 	Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company’s successors, including any entity that succeeds
to the business and interests of Company in connection with or following a Change in
Control. This Agreement and all rights hereunder are personal to the Executive and
shall not be assignable by the Executive; provided, however, that any
amounts that shall have become payable under this Agreement prior to the Executive’s
death shall inure to the benefit of the Executive’s heirs or other legal
representatives, as the case may be.
	 
	 	(b)	 	Severability. In the event that any provision of this Agreement is
determined to be partially or wholly invalid, illegal or unenforceable, then such
provision shall be modified or restricted to the extent necessary to make such
provision valid, binding and enforceable, or if such provision cannot be modified or
restricted, then such provision shall be deemed to be excised from this Agreement,
provided that the binding effect and enforceability of the remaining provisions of
this Agreement shall not be affected or impaired in any manner. No waiver by a party
of any provisions or conditions of this Agreement shall be deemed a waiver of similar
or dissimilar provisions and conditions at the same time or any prior or subsequent
time.




 









 






	 	(c)	 	Entire Agreement; Amendments. Except as otherwise specifically
provided herein, this Agreement constitutes the entire agreement between the parties
respecting the subject matter hereof and supersedes any prior agreements respecting
severance benefits upon a Change in Control, including the Change in Control
Agreement. No amendment to this Agreement shall be deemed valid unless in writing and
signed by the parties.
	 
	 	(d)	 	Governing Law. Notwithstanding any conflict of law or choice of law
provision to the contrary, this Agreement shall be construed and interpreted according
to the laws of the State of California.





     7. Dispute Resolution




	 	(a)	 	Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration, conducted
before a single arbitrator in the State of California, in accordance with the National
Rules for Resolution of Employment Disputes of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator’s award in any court having
jurisdiction. The Company shall pay all the costs and expenses of any such
arbitration proceeding.
	 
	 	(b)	 	Attorney Fees. Subject to Section 4(ix), in the event that there is
any controversy or claim arising out of or relating to this Agreement, or to the
interpretation, breach or enforcement thereof, and any arbitration or other proceeding
is commenced to enforce the provisions of this Agreement, the Executive shall be
entitled to payment of the Executive’s reasonable attorney’s fees, costs and expenses;
provided, however, that if the arbitrator or other trier of fact determines that the
claims of the Executive are frivolous, the Executive shall not be reimbursed for any
such fees, costs and expenses and the Executive shall repay to the Company any such
reimbursements previously paid pursuant to this Section 7(b).





     8. Miscellaneous




	 	(a)	 	Tax Withholding. All payments required to be made to the Executive
under this Agreement shall be subject to withholding of amounts relating to income
tax, excise tax, employment tax and other payroll taxes to the extent required to be
withheld pursuant to applicable law or regulation.
	 
	 	(b)	 	No Right of Employment. Nothing in this Agreement shall confer upon
the Executive any right to continue as an Executive of the Company or interfere in any
way with the right of the Company to terminate the Executive’s employment at any time,
subject to the consequences of a Covered Termination as provided herein.
	 
	 	(c)	 	No Duplication of Benefits. In the event that the Executive is
entitled to severance payments or benefits under any other agreement, plan or program
of the Company, or by reason of any legal requirement, the severance benefits provided
hereunder shall be reduced accordingly to avoid duplication of benefits.




 









 






	 	(d)	 	No Mitigation or Offset. The Executive shall be under no obligation
to minimize or mitigate damages by seeking substitute employment or otherwise, and the
obtaining of any such other employment shall in no event affect any reduction of
obligations hereunder for the payments or benefits required to be provided to the
Executive. Except as specifically provided herein, the obligations of the Company
hereunder shall not be affected by any set-off or counterclaim rights that any party
may have against the Executive.
	 
	 	(e)	 	Other Compensation and Benefit Plans. Subject to the provisions of
Section 8(c), the rights and benefits of the Executive under this Agreement shall not
be in lieu of the Executive’s benefits under any compensation or benefit plan or
program of the Company, which shall be payable in accordance with the terms and
conditions of such plans or programs.
	 
	 	(f)	 	Notices. Any notice required or permitted to be given by this
Agreement shall be effective only if in writing, delivered personally or by courier or
by facsimile transmission or sent by express, registered or certified mail, postage
prepaid, to the parties at the addresses hereinafter set forth, or at such other
places that either party may designate by notice to the other.
	 
	 	 	 	Notice to the Company shall be addressed to:
	 
	 	 	 	Illumina, Inc.
	 
	 	 	 	9885 Towne Centre Drive
	 
	 	 	 	San Diego, CA 92121-1975
	 
	 	 	 	Attn: Jay T. Flatley
	 
	 	 	 	President and Chief Executive Officer
	 
	 	 	 	facsimile: 858-202-4599





          Notice to the Executive shall be addressed to the Executive at the address indicated on the
signature page hereof.





	 	(g)	 	Captions and Headings. Captions and paragraph headings are for
convenience only, are not a part of this Agreement and shall not be used to construe
any provision of this Agreement.
	 
	 	(h)	 	Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original, but both of which when taken together shall
constitute one Agreement.
	 
	 	(i)	 	Compliance with Section 409A of the Code. In the event that following
the date hereof either the Company or the Executive reasonably determines that any
compensation or benefits payable under this Agreement shall be subject to Section 409A
of the Code, the Company and the Executive shall cooperate in good faith to adopt such
amendments to this Agreement or adopt other policies and procedures (including
amendments, policies and procedures with retroactive effect), or take any other
commercially reasonable actions necessary or appropriate to (1) exempt the
compensation and benefit payable under this Agreement from Section 409A of the Code
and/or preserve the intended tax treatment of the compensation and benefits provided
with respect to this Agreement or




 









 











          (2) comply with the requirements of Section 409A of the Code and the related
Department of Treasury guidance.




          IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the day and
year first above written.




	 	 	 	 	 
	 	ILLUMINA, INC.

 	 
	 	By:	 	 
	 	 	Jay T. Flatley 	 
	 		         Its: President & Chief Executive Officer 	 
	 
	 	EXECUTIVE

 	 
	 	
 	 
	 	Name: 	 
	 	Address: