Exhibit 10.2
AGREEMENT RE: CHANGE IN CONTROL
This AGREEMENT RE:
CHANGE IN CONTROL (this “Agreement”) is dated as of
June 5, 2008 and is entered into by and between Robert
Bujarski (“Executive”) and Quidel Corporation, a
Delaware corporation (the “Company”).
Background
The Company
believes that because of its position in the industry, financial
resources and historical operating results there is a possibility
that the Company may become the subject of a Change in Control (as
defined below), either now or at some time in the
future.
The Company
believes that it is in the best interest of the Company and its
stockholders to foster Executive’s objectivity in making
decisions with respect to any pending or threatened Change in
Control of the Company and to assure that the Company will have the
continued dedication and availability of Executive, notwithstanding
the possibility, threat or occurrence of a Change in Control. The
Company believes that these goals can best be accomplished by
alleviating certain of the risks and uncertainties with regard to
Executive’s financial and professional security that would be
created by a pending or threatened Change in Control and that
inevitably would distract Executive and could impair his ability to
objectively perform his duties for and on behalf of the Company.
Accordingly, the Company believes that it is appropriate and in the
best interest of the Company and its stockholders to provide to
Executive compensation arrangements upon a Change in Control that
lessen Executive’s financial risks and uncertainties and that
are reasonably competitive with those of other
corporations.
With these and
other considerations in mind, the Compensation Committee of the
Company has authorized the Company to enter into this Agreement
with the Executive to provide the protections set forth herein for
Executive’s financial security following a Change in
Control.
NOW, THEREFORE, in
consideration of the foregoing, and for other good and valuable
consideration the receipt of which is hereby acknowledged, it is
hereby agreed as follows:
Agreement
1.
Term of Agreement . This Agreement shall be effective
from Executive’s first day of employment with the Company
and, subject to the provisions of Section 4, shall extend to
(and thereupon automatically terminate) one (1) day after
Executive’s termination of employment with the Company for
any reason. No termination of this Agreement shall limit, alter or
otherwise affect Executive’s rights hereunder with respect to
a Change in Control which has occurred prior to such termination,
including without limitation Executive’s right to receive the
various benefits hereunder.
2.
Purpose of Agreement . The purpose of this Agreement
is to provide that, in the event of a “Change in
Control,” Executive may become entitled to receive certain
additional benefits, as described herein, in the event of his
termination under specified circumstances.
3.
Change in Control . As used in this Agreement, the
phrase “Change in Control” shall mean:
(i)
Except as provided by subparagraph (iii) hereof, the
acquisition (other than from the Company) by any person, entity or
“group”, within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)
(excluding, for this purpose, the Company or its subsidiaries, or
any executive benefit plan of the Company or its subsidiaries which
acquires beneficial ownership of voting securities of the Company),
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of forty percent (40%) or more
of either the then outstanding shares of common stock or the
combined voting power
of the Company’s then outstanding voting securities entitled
to vote generally in the election of directors; or
(ii)
Individuals who, as of the date hereof, constitute the Board of
Directors of the Company (as of the date hereof the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of Directors of the Company,
provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the
Company’s stockholders, is or was approved by a vote of at
least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the
Directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board; or
(iii)
Approval by the stockholders of the Company of a reorganization,
merger or consolidation with any other person, entity or
corporation, other than
(1)
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 another entity) more than
fifty percent (50%) of the combined voting power of the voting
securities of the Company or such other entity outstanding
immediately after such merger or consolidation, or
(2)
a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person acquires
forty percent (40%) or more of the combined voting power of the
Company’s then outstanding voting securities; or
(iv)
Approval by the stockholders of the Company of a plan of complete
liquidation of the Company or an agreement for the sale or other
disposition by the Company of all or substantially all of the
Company’s assets.
4.
Effect of a Change in Control . In the event of a
Change in Control, Sections 6 through 13 of this Agreement shall
become applicable to Executive. These Sections shall continue to
remain applicable until the third anniversary of the date upon
which the Change in Control occurs. On such third anniversary
date, and provided that the employment of Executive has not been
terminated on account of a Qualifying Termination (as defined in
Section 5 below), this Agreement shall terminate and be of no
further force or effect.
5.
Qualifying Termination . If following, or within
thirty (30) days prior to, a Change in Control Executive’s
employment with the Company and its affiliated companies is
terminated, such termination shall be conclusively considered a
“Qualifying Termination” unless:
(a)
Executive voluntarily terminates his employment with the Company
and its affiliated companies. Executive, however, shall
not be considered to have voluntarily terminated his
employment with the Company and its affiliated companies if,
following, or within thirty (30) days prior to, the Change in
Control, Executive’s base salary is reduced or adversely
modified in any material respect, or Executive’s authority or
duties are materially changed, and subsequent to such reduction,
modification or change Executive elects to terminate his employment
with the Company and its affiliated companies within sixty (60)
days following such reduction, modification or change after having
given the Company at least thirty (30) days notice of the same and
a reasonable opportunity to cure during such 30-day notice
period. For such purposes, Executive’s authority or
duties shall conclusively be considered to have been
“materially changed” if, without Executive’s
express and voluntary written consent, there is any substantial
diminution or adverse modification in Executive’s title,
status, overall position, responsibilities, reporting relationship,
general working environment (including without limitation
secretarial and staff support, offices, and frequency and mode of
travel), or if, without Executive’s express and voluntary
written consent, Executive’s job location is transferred to a
site more than twenty-five (25) miles away from his place of
employment thirty (30) days prior to the Change in Control.
In this regard as well, Executive’s authority and duties
shall conclusively be considered to have been “materially
changed” if, without Executive’s express and voluntary
written consent, Executive no longer holds the same title or no
longer has the same authority and responsibilities or no longer has
the same reporting responsibilities, in each case with respect and
as to a publicly held parent company which is not controlled by
another entity or person.
2
(b)
The termination is on account of Executive’s death or
Disability. For such purposes, “Disability” shall mean
a physical or mental incapacity as a result of which Executive
becomes unable to continue the performance of his responsibilities
for the Company and its affiliated companies and which, at least
three (3) months after its commencement, is determined to be
total and permanent by a physician agreed to by the Company and
Executive, or in the event of Executive’s inability to
designate a physician, Executive’s legal representative. In
the absence of agreement between the Company and Executive, each
party shall nominate a qualified physician and the two physicians
so nominated shall select a third physician who shall make the
determination as to Disability.
(c)
Executive is involuntarily terminated for “Cause.” For
this purpose, “Cause” shall be limited to only three
types of events:
(1)
the willful and deliberate refusal of Executive to comply with a
lawful, written instruction of the Board of Directors, which
refusal is not remedied by Executive within a reasonable period of
time after his receipt of written notice from the Company
identifying the refusal, so long as the instruction is consistent
with the scope and responsibilities of Executive’s position
prior to the Change in Control;
(2)
an act or acts of personal dishonesty by Executive which were
intended to result in substantial personal enrichment of Executive
at the expense of the Company; or
(3)
Executive’s conviction of any felony involving an act of
moral turpitude.
6.
Severance Payment . If Executive’s employment is
terminated as a result of a Qualifying Termination, the Company
shall pay Executive within thirty (30) days after the Qualifying
Termination a cash lump sum equal to two (2) times the
Executive’s Compensation (the “Severance
Payment”).
(a)
For purposes of this Agreement, Executive’s
“Compensation” shall equal the sum of
(i) Executive’s highest annual salary rate with the
Company within the three year period ending on the date of
Executive’s Qualifying Termination, plus (ii) a
“Bonus Increment.” The Bonus Increment shall equal the
annualized average of all bonuses and incentive compensation
payments paid to Executive during the two (2) year period
immediately before the date of Executive’s Qualifying
Termination under all of the Company’s bonus and incentive
compensation plans or arrangement.
(b)
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