Exhibit 10.1
AGREEMENT RE: CHANGE IN
CONTROL
This AGREEMENT RE: CHANGE IN CONTROL
(this “Agreement”) is dated as of November 7, 2008
and is entered into by and between John Tamerius
(“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
as of November 10, 2008 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,
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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.
(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
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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)
[Intentionally Deleted.]
(c)
