exv10w1



 










Exhibit 10.1




June 7, 2006




William A. McMillan



Re: Terms of Separation



Dear Bill:




     This revised letter confirms the agreement between you and Cepheid (“the Company”) concerning
the terms of your separation and offers you the separation compensation we discussed in exchange
for a release of claims.



     1. Separation Date: June 9, 2006 is your last day of employment with the Company (the
“Separation Date”).



     2. Acknowledgment of Payment of Wages: By your signature below, you acknowledge that
on June 9, 2006, we provided you a final paycheck in the gross amount of $41,784.61 for all wages,
salary, bonuses, reimbursable expenses, accrued vacation and any similar payments due you from the
Company as of the Separation Date. By signing below, you acknowledge that the Company does not owe
you any other amounts.



     3. Outplacement Services: To further assist you in your effort to transition to a new
job, the Company will make the necessary payments for you to enroll to receive six months of
executive level outplacement services from Lee, Hecht, Harrison.



     4. Separation Compensation: In exchange for your agreement to the waiver of claims
set forth in paragraph 7, below, the Company agrees to provide you with the following:



 









 





          a. Severance: The Company will pay you, within five (5) business days following the
expiration of the revocation period described in paragraph 15, below, a total of $112,000.00 less
applicable state and federal payroll deductions, which constitutes six months of your base salary;




          b. Partial Acceleration of Stock Vesting: You currently hold options to purchase
255,800 shares of the Company’s Common Stock (the “Option”). As of the Separation Date, 107,474
of the 255,800 shares subject to the Option are vested. However, in exchange for your release of
claims, the Company will agree to accelerate by nine months the vesting of four grants under the
Option: Grant Numbers 00000827, 00000996, 0000652 and 0000729 (referenced in the attached
Personnel Grant Status chart). As a result, at the Separation Date, a total of 132,612 shares
subject to the Option will be vested. You shall have a period of three months from the Separation
Date within which to exercise all unexercised, vested shares. All other terms and conditions of
your Stock Option Agreement, and the Company’s Stock Option Plan shall remain in full force and
effect.




          By signing below, you acknowledge that you are receiving the separation compensation outlined
in this paragraph in consideration for waiving your rights to claims referred to in this agreement
and that you would not otherwise be entitled to the separation compensation.




     5. Return of Company Property: You hereby warrant to the Company that you 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 that you are bound by the
attached agreement dated March 28, 1997, and that as a result of your employment with the Company
you have had access to the Company’s Confidential Information (as defined in the agreement), that
you will hold all Confidential Information in strictest confidence and that you will not make use
of such Confidential Information on behalf of anyone. You further confirm that you have delivered
to the Company all documents and data of any nature containing or pertaining to such Confidential
Information and that you have not taken with you any such documents or data or any reproduction
thereof.



     7. Waiver of Claims: The payments and promises set forth in this agreement are in
full satisfaction of all accrued salary, vacation pay, bonus 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. You hereby release and



 









 







waive any and all 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. 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.””



     8. Nondisparagement: You agree that you will not disparage Releasees or their
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. The Company agrees that its
management will not disparage you with any written or oral statement.



     9. Legal and Equitable Remedies: You agree that Releasees have the right to enforce
this agreement and any of its provisions by injunction, specific performance or other equitable
relief without prejudice to any other rights or remedies Releasees may have at law or in equity for
breach of this agreement.



     10. 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
entitled.



     11. Confidentiality: 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. 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 agreement.



 









 





     12. 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.



     13. 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, whether written or oral, relating to such subject matter other than the confidentiality
agreement referred to in paragraph 6, above. 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.



     14. 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.



     15. 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 to this agreement.



     16. Review of Separation 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 document and that the separation compensation to be provided
to you pursuant to Paragraph 4 will be provided only following the seven (7) day revocation period.



     If you agree to abide by the terms outlined in this letter, please sign this letter below and
also sign the attached copy and return it to me. I wish you the best in your future endeavors.



 









 





	 	 	 	 	 
	 	Sincerely,





Cepheid

 	 
	 	By:  	/s/ Laurie King
 	 
	 	 	Laurie King 	 
	 	 	Vice President, Human Resources 	 
	 



	 	 	 
	READ, UNDERSTOOD AND AGREED

	 	 
	 
	 	 
	/s/ William McMillan

	 	Date: 6/14/06
	 	 	 
	William A. McMillan