FLUIDIGM CORPORATION EMPLOYMENT AND SEVERANCE AGREEMENT
Exhibit 10.13
FLUIDIGM CORPORATION
EMPLOYMENT AND SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the “Agreement”) is made and entered into by and
between [ ] (“Executive”) and Fluidigm Corporation (the “Company”), effective as of
[DATE] (the “Effective Date”).
RECITALS
Whereas, it is expected that the Company from time to time will consider the
possibility of an acquisition by another company or other Change of Control (as defined herein).
The Board of Directors of the Company (the “Board”) recognizes that such consideration can be a
distraction to Executive and can cause Executive to consider alternative employment opportunities.
Whereas, the Board believes that it is in the best interests of the Company and its
stockholders to provide Executive with an incentive to continue his or her employment to motivate
Executive to maximize the value of the Company upon a Change of Control for the benefit of its
stockholders.
Whereas, the Board believes that it is in the best interests of the Company and its
stockholders to provide Executive with certain severance benefits upon Executive’s termination of
employment without cause or upon a constructive termination following a Change of Control of the
Company and to provide Executive with certain severance benefits upon Executive’s termination of
employment without cause outside of the change of control context, in order to provide Executive
with enhanced financial security and incentive to remain with the Company.
Whereas, certain capitalized terms used in the Agreement are defined in Section 6
below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. Term of Agreement. This Agreement will terminate upon the date that all of the
obligations of the parties hereto with respect to this Agreement have been satisfied.
2. At-Will Employment. The Company and Executive acknowledge that Executive’s
employment is and will continue to be at-will, as defined under applicable law, except as may
otherwise be specifically provided under the terms of a written formal employment agreement, if
any, between the Company and Executive (an “Employment Agreement”). As provided in Section 3(f)
below, Executive will be entitled to no benefits, compensation or other payments or rights upon
termination of employment other than those benefits expressly set forth in this Agreement.
3. Severance Benefits.
(a) Termination without Cause Prior to a Change of Control or After Twelve Months
Following a Change of Control. If prior to a Change of Control or after twelve (12) months
following a Change of Control, the Company (or any parent or subsidiary or successor of the
Company) terminates Executive’s employment without Cause, and, in each case, Executive signs and
does not revoke a standard release of claims with the Company in a form acceptable to the Company,
then Executive will receive, in addition to Executive’s salary payable through the date of
termination of employment and any other employee benefits earned and owed through the date of
termination, the following severance from the Company:
(i) Severance Payment. As provided in Section 3(c) below, six (6) months severance
pay (less applicable withholding taxes) equal to the pro-rata portion of Executive’s base salary
(as in effect immediately prior to Executive’s termination).
(ii) Continued Employee Benefits. Reimbursement for a period of up to six (6) months
(less applicable withholding taxes, if any) for the costs and expenses incurred by Executive and/or
Executive’s eligible dependents for coverage under the Company’s Benefit Plans, provided that such
coverage is timely elected under the Consolidated Omnibus Budget Reconciliation Act of 1985 or
similar applicable state statute (“COBRA”).
(b) Constructive Termination or Termination without Cause Following a Change of
Control. If within twelve (12) months following a Change of Control (i) Executive terminates
his or her employment with the Company (or any parent or subsidiary or successor of the Company)
for Good Reason, or (ii) the Company (or any parent or subsidiary or successor of the Company)
terminates Executive’s employment without Cause, and, in each case, Executive signs and does not
revoke a standard release of claims with the Company in a form acceptable to the Company, then
Executive will receive, in addition to Executive’s salary payable through the date of termination
of employment and any other employee benefits earned and owed through the date of termination, the
following severance from the Company:
(i) Severance Payment. As provided in Section 3(c) below, six (6) months severance
pay (less applicable withholding taxes) equal to the pro-rata portion of Executive’s base salary
(as in effect immediately prior to (A) the Change of Control, or (B) Executive’s termination,
whichever is greater).
(ii) Accelerated Vesting of Options; Restricted Stock. Then-outstanding and unvested
stock options in Company common stock, stock appreciation rights and similar equity awards held by
Executive (“Options”) will immediately vest and become exercisable as to an all shares underlying
such Options. The Options will remain exercisable following the termination for the period
prescribed in the respective option agreement, which will not extend past the term of each Option.
Additionally, any shares of restricted stock, restricted stock units and similar equity awards
(“Restricted Stock”) then-held by Executive will immediately vest and the applicable Company right
of repurchase or reacquisition with respect to such shares of Restricted Stock will lapse as to all
such shares.
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(iii) Continued Employee Benefits. Reimbursement for a period of up to six (6) months
(less applicable withholding taxes, if any) for the costs and expenses incurred by Executive and/or
Executive’s eligible dependents for coverage under the Company’s Benefit Plans, provided that such
coverage is timely elected under COBRA.
(c) Timing of Severance Payments. The Company will pay the severance payments to
which Executive is entitled under Section 3(a)(i) above as salary continuation on the same basis
and timing as in effect immediately prior to the termination and the Company will pay the severance
payments to which Executive is entitled under Section 3(b)(i) in a lump sum. If Executive should
die before all amounts have been paid, such unpaid amounts will be paid in a lump sum payment (less
any withholding taxes) to Executive’s spouse, designated beneficiary, or otherwise to the personal
representative of Executive’s estate.
(d) Voluntary Resignation; Termination For Cause. If Executive’s employment with the
Company terminates (i) voluntarily by Executive (except upon a termination for Good Reason within
twelve (12) months of a Change of Control), or (ii) for Cause by the Company (or any parent or
subsidiary or successor of the Company), then Executive will not be entitled to receive any
severance benefits and the sole obligation of the Company shall be to pay to Executive, an amount
equal to Executive’s base salary payable through the date of termination of employment and any
other employee benefits earned and owed through the date of termination.
(e) Disability; Death. If the Company terminates Executive’s employment as a result
of Executive’s Disability, or Executive’s employment terminates due to his or her death, then
Executive will not be entitled to receive severance benefits and the sole obligation of the Company
shall be to pay to Executive an amount equal to Executive’s base salary payable to the date of
termination of employment and any other employee benefits earned and owed through the date of
termination to Executive, Executive’s spouse, designated beneficiary, or otherwise to the personal
representative of Executive’s estate, as the case may be.
(f) Exclusive Remedy. In the event of a termination of Executive’s employment with
the Company (or any parent or subsidiary or successor of the Company), the provisions of this
Section 3 are intended to be and are exclusive and in lieu of any other rights or remedies to which
Executive or the Company may otherwise be entitled, whether at law, tort or contract, in equity, or
under this Agreement. Executive will be entitled to no benefits, compensation or other payments or
rights upon termination of employment other than those benefits expressly set forth in this Section
3.
(g) Section 409A. Notwithstanding anything to the contrary in this Agreement, if
Executive is a “specified employee” within the meaning of Section 409A of the Code and any final
regulations and guidance promulgated thereunder (“Section 409A”) at the time of Executive’s
termination, then only that portion of the severance and benefits payable to Executive pursuant to
this Agreement (other than due to death), if any, and any other severance payments or separation
benefits which may be considered deferred compensation under Section 409A (together, the “Deferred
Compensation Separation Benefits”), which (when considered together) do not exceed the
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Section 409A Limit (as defined below) may be made within the first six (6) months following
Executive’s termination of employment in accordance with the payment schedule applicable to each
payment or benefit. Any portion of the Deferred Compensation Separation Benefits in excess of the
Section 409A Limit otherwise due to Executive on or within the six (6) month period following
Executive’s termination will accrue during such six (6) month period and will become payable in a
lump sum payment on the date six (6) months and one (1) day following the date of Executive’s
termination of employment or the date of Executive’s death if earlier. All subsequent Deferred
Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule
applicable to each payment or benefit. The foregoing provisions are intended to comply with the
requirements of Section 409A so that none of the severance payments and benefits to be provided
hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities
herein will be interpreted to so comply. The Company and Executive agree to work together in good
faith to consider amendments to this Agreement and to take such reasonable actions which are
necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition
prior to actual payment to Executive under Section 409A.
For purposes of this Agreement, “Section 409A Limit” will mean the lesser of two (2) times:
(i) Executive’s annualized compensation based upon the annual rate of pay paid to Executive during
the Company’s taxable year preceding the Company’s taxable year of Executive’s termination of
employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal
Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that may be taken
into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in
which Executive’s employment is terminated.
4. Limitation on Payments. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute
payments” within the meaning of Section 280G of the Code and (ii) but for this Section 4, would be
subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits
under Section 4(a)(i) will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such severance benefits being subject to excise tax under Section
4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an
after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some
portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the
Company and Executive otherwise agree in writing, any determination required under this Section 4
will be made in writing by the Company’s independent public accountants immediately prior to Change
of Control (the “Accountants”), whose determination will be conclusive and binding upon Executive
and the Company for all purposes. For purposes of making the calculations required by this Section
4, the Accountants may make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the application of Sections 280G
and 4999 of the Code. The Company and Executive will furnish to the Accountants
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such information and documents as the Accountants may reasonably request in order to make a
determination under this Section. The Company will bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section 4.
5. Definition of Terms. The following terms referred to in this Agreement will have
the following meanings:
(a) Benefit Plans. For purposes of this Agreement, “Benefit Plans” means the group
health plans, policies or arrangements that the Company sponsors (or participates in) and that
immediately prior to Executive’s termination of employment provide Executive and/or Executive’s
eligible dependents with medical, dental, and/or vision benefits. Benefit Plans do not include any
other type of benefit (including, but not by way of limitation, disability, life insurance or
retirement benefits). A requirement that the Company provide Executive and Executive’s eligible
dependents with coverage under the Benefit Plans will not be satisfied unless the coverage is no
less favorable than that provided to senior executives of the Company at any applicable time during
the period Executive is entitled to receive severance pursuant to Section 3. The Company may, at
its option, satisfy any requirement that the Company provide coverage under any Benefit Plan by
providing coverage under a separate plan or plans providing coverage that is no less favorable or
by paying Executive a lump sum payment which is, on an after-tax basis, sufficient to provide
Executive and Executive’s eligible dependents with equivalent coverage under a third-party plan
that is reasonably available to Executive and Executive’s eligible dependents.
(b) Cause. “Cause” is defined as (i) an act of dishonesty made by Executive in
connection with Executive’s responsibilities as an employee, (ii) Executive’s conviction of, or
plea of nolo contendere to, a felony or any crime involving fraud, embezzlement or
any other act of moral turpitude, (iii) Executive’s gross misconduct, (iv) Executive’s unauthorized
use or disclosure of any proprietary information or trade secrets of the Company or any other party
to whom Executive owes an obligation of nondisclosure as a result of Executive’s relationship with
the Company; (v) Executive’s willful breach of any obligations under any written agreement or
covenant with the Company; or (vi) Executive’s continued failure to perform his employment duties
after Executive has received a written demand of performance from the Company with specifically
sets forth the factual basis for the Company’s belief that Executive has not substantially
performed his duties and has failed to cure such non-performance to the Company’s satisfaction
within 10 business days after receiving such notice.
(c) Change of Control. “Change of Control” of the Company is defined as:
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company representing 50% or more of the total
voting power represented by the Company’s then outstanding voting securities; or
(ii) a change in the composition of the Board occurring within a two-year period, as a result
of which fewer than a majority of the directors are Incumbent Directors. “Incumbent Directors”
will mean directors who either (A) are directors of the Company as of the date hereof, or (B) are
elected, or nominated for election, to the Board with the affirmative votes of
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at least a majority of the Incumbent Directors at the time of such election or nomination (but
will not include an individual whose election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to the Company); or
(iii) the date of the consummation of a merger or consolidation of the Company with any other
corporation that has been approved by the stockholders of the Company, other than a merger or
consolidation which would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company; or
(iv) the date of the consummation of the sale or disposition by the Company of all or
substantially all the Company’s assets.
(d) Disability. “Disability” will mean that Executive has been unable to perform his
Company duties as the result of his incapacity due to physical or mental illness, and such
inability, at least twenty-six (26) weeks after its commencement, is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable to Executive or
Executive’s legal representative (such Agreement as to acceptability not to be unreasonably
withheld). Termination resulting from Disability may only be effected after at least 30 days’
written notice by the Company of its intention to terminate Executive’s employment. In the event
that Executive resumes the performance of substantially all of his duties hereunder before the
termination of his employment becomes effective, the notice of intent to terminate will
automatically be deemed to have been revoked.
(e) Good Reason. “Good Reason” means the occurrence of one or more of the following
events effected without Executive’s prior consent, provided Executive terminates Executive’s
employment with the Company within one (1) year following the initial existence of the “Good Reason” condition (discussed below): (i) the
assignment to Executive of any duties or the reduction of Executive’s duties, either of which
results in a material diminution in Executive’s position or responsibilities with the Company;
provided that, it being understood that the continuance of Executive’s duties and responsibilities
at the subsidiary or divisional level following a Change of Control, rather than at the parent,
combined or surviving company level following such Change of Control shall not be deemed Good
Reason within the meaning of this clause (i); (ii) a material reduction by the Company in the base
salary of Executive; (iii) a material change in the geographic location at which Executive must
perform services (for purposes of this Agreement, the relocation of Executive to a facility or a
location less than 50 miles from Executive’s then-present location shall not be considered a
material change in geographic location); or (iv) any material breach by the Company of any material
provision of this Agreement. Executive will not resign for Good Reason without first providing the
Company with written notice of the acts or omissions constituting the grounds for “Good Reason”
within ninety (90) days of the initial existence of the grounds for “Good Reason” and a reasonable
cure period of not less than thirty (30) days following the date of such notice.
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6. Successors.
(a) The Company’s Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets will assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in the same manner
and to the same extent as the Company would be required to perform such obligations in the absence
of a succession. For all purposes under this Agreement, the term “Company” will include any
successor to the Company’s business and/or assets which executes and delivers the assumption
agreement described in this Section 6(a) or which becomes bound by the terms of this Agreement by
operation of law.
(b) Executive’s Successors. The terms of this Agreement and all rights of Executive
hereunder will inure to the benefit of, and be enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
(c) Assumption. It shall be considered a material breach of the Agreement if the
Company fails to obtain the assumption of this Agreement by any successor to the Company.
7. Notice.
(a) General. Notices and all other communications contemplated by this Agreement will
be in writing and will be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of
Executive, mailed notices will be addressed to him or her at the home address which he or she most
recently communicated to the Company in writing. In the case of the Company, mailed notices will
be addressed to its corporate headquarters, and all notices will be directed to the attention of
its President.
(b) Notice of Termination. Any termination by the Company for Cause or by Executive
for Good Reason or as a result of a voluntary resignation will be communicated by a notice of
termination to the other party hereto given in accordance with Section 7(a) of this Agreement.
Such notice will indicate the specific termination provision in this Agreement relied upon, will
set forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and will specify the termination date (which will be
not more than thirty (30) days after the giving of such notice). The failure by Executive to
include in the notice any fact or circumstance which contributes to a showing of Good Reason will
not waive any right of Executive hereunder or preclude Executive from asserting such fact or
circumstance in enforcing his or her rights hereunder.
8. Miscellaneous Provisions.
(a) No Duty to Mitigate. Executive will not be required to mitigate the amount of any
payment contemplated by this Agreement, nor will any such payment be reduced by any earnings that
Executive may receive from any other source.
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(b) Waiver. No provision of this Agreement will be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by
an authorized officer of the Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement by the other party
will be considered a waiver of any other condition or provision or of the same condition or
provision at another time.
(c) Headings. All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement.
(d) Entire Agreement. This Agreement, together with any Employment Agreement,
constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior
representations, understandings, undertakings or agreements (whether oral or written and whether
expressed or implied) of the parties with respect to the subject matter hereof.
(e) Choice of Law. The validity, interpretation, construction and performance of this
Agreement will be governed by the laws of the State of California (with the exception of its
conflict of laws provisions).
(f) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement will not affect the validity or enforceability of any other provision hereof,
which will remain in full force and effect.
(g) Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable income and employment taxes.
(h) Counterparts. This Agreement may be executed in counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year set forth below.
| COMPANY | FLUIDIGM CORPORATION | |||
| By: | ||||
| Title: | ||||
EXECUTIVE
|
By: | |||
| Title: | ||||
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