Exhibit 10.1
SEPARATION AND GENERAL RELEASE
AGREEMENT
This SEPARATION
AND GENERAL RELEASE AGREEMENT (this “Agreement”), dated
as of June 1, 2007 (the “Effective Date”), is entered
into by and between Quidel Corporation, a Delaware corporation (the
“Company”), and Mark Paiz
(“Paiz”).
RECITALS
A.
Paiz currently serves as the Company’s Chief Operating
Officer and will resign as an employee of the Company on August 31,
2007. Pursuant to pre-existing and continuing employment and
related understandings and agreements, Paiz’s employment with
the Company is and remains “at will.”
B.
The Company desires to engage Paiz to provide consulting services
to the Company pursuant to this Agreement and Paiz desires to
provide such consulting services to the Company pursuant to this
Agreement.
C.
The Company and Paiz desire to enter into an agreement setting
forth various terms and conditions in connection with the
termination of Paiz’s employment with the Company.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual covenants and promises contained in
this Agreement and for other good and valuable consideration the
receipt and adequacy of which are acknowledged, the parties agree
as follows:
1.
Resignation .
Consistent with
the Resignation (attached hereto as Exhibit A ) which
Paiz has executed and delivered concurrently with this Agreement,
the term of Paiz’s employment shall continue until, and then
automatically terminate, on August 31, 2007, or such earlier
date if Paiz’s employment is terminated as provided herein
(the “Termination Date”). Through the Termination
Date and subject to Section 4 below, Paiz will continue to receive
his current salary and benefits and his employment shall continue
on the same terms and conditions as of the date hereof. Paiz
shall not receive a bonus for 2007. Upon his termination of
employment, Paiz will be paid for all accrued and unused
vacation. Prior to the Termination Date, the Company may, in
its sole discretion, relieve Paiz of all or a part of his duties
and assign Paiz other reasonable duties and responsibilities which
Paiz agrees to perform until the Termination Date.
2.
Consulting Services .
Effective
September 1, 2007, and subject to Paiz signing (and not thereafter
revoking) a Release of Claims in the form set forth on Exhibit
B hereto on or after August 31, 2007, Paiz shall provide such
consulting services as are reasonably requested by the Company (the
“Consulting Services”). The Consulting Services
shall include Paiz remaining available to work on designated
projects and assignments for up to 24 hours per month. In
providing the
Consulting
Services, Paiz shall report to the Chief Executive Officer of the
Company and/or such individual or individuals as the Chief
Executive Officer shall designate.
(a)
Term . The consulting arrangement described in this
Section 2 shall continue through August 31, 2008 unless earlier
terminated as provided for in this Agreement.
(b)
Compensation . In consideration of the Consulting
Services, the Company shall pay Paiz a total of $300,000
plus pay for outplacement services and six months of COBRA
insurance premium payments commencing from the Termination
Date. Compensation for the Consulting Services hereunder
shall be paid in accordance with the following schedule, provided
that Paiz complies with his obligations set forth in Section 3
below:
|
September 1, 2007
|
|
$
|
45,000
|
|
|
December 1, 2007
|
|
$
|
45,000
|
|
|
March 1, 2008
|
|
$
|
75,000
|
|
|
August 31, 2008
|
|
$
|
135,000
|
|
Paiz shall be
responsible for all taxes, including self-employment taxes, with
respect to such payments.
(c)
Business Expenses . The Company shall reimburse Paiz
for reasonable expenses incurred in providing the Consulting
Services, provided such expenses are at the Company’s request
or are incurred with the Company’s approval and provided Paiz
has supplied reasonable supporting documentation for such
expenses. Such reimbursement shall otherwise be made in a
manner consistent with the Company’s generally applicable
policies.
(d)
Independent Contractor . In providing the Consulting
Services, Paiz expressly agrees that he is an independent
contractor and shall not be considered to be an employee or agent
of the Company in any matter under any circumstances or for any
purposes whatsoever. The Company shall not provide Paiz with
any benefits, including pension, retirement, or any kind of
insurance benefits, including workers’ compensation
insurance, on account of the Consulting Services.
3.
Cooperation; Covenants .
(a)
Between the date hereof and the Termination Date, Paiz will
cooperate and assist the Company in any and all ongoing matters and
in transitioning his duties, and Paiz shall use his best efforts to
transition his duties and responsibilities to such individual or
individuals as the Chief Executive Officer of the Company shall
designate.
(b)
Paiz hereby reaffirms his obligation to adhere to the terms of the
Confidentiality Agreement he signed on December 8, 1997. Paiz
agrees and acknowledges that said Confidentiality Agreement will
remain in effect during his consulting assignment and
thereafter.
(c)
On the Termination Date, Paiz agrees to return to the Company all
of the Company’s property, documents, books, records,
reports, contracts, lists, computer disks (or other
computer-generated files or data) or copies thereof created on any
medium, prepared or obtained by him in the course of or incident to
Paiz’s employment with the Company.
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(d)
Upon the termination of his consulting assignment, Paiz agrees to
return to the Company all of the Company’s property,
documents, books, records, reports, contracts, lists, computer
disks (or other computer-generated files or data) or copies thereof
created on any medium, prepared or obtained by him in the course of
or incident to the provision of the Consulting Services.
(e)
Paiz agrees that while employed by the Company and during the
period of his consulting he will not, directly or indirectly,
provide services, whether as an employee, consultant, director,
independent contractor, agent, owner or partner, to any person or
entity that competes or is planning to compete with the Company in
the rapid diagnostic test market in upper respiratory infectious
diseases, reproductive health (in the professional market), or
Fecal Occult Blood testing; provided , however , that
Paiz’s passive investment of up to five percent (5%) of the
outstanding voting securities or similar equity interest in a
publicly held entity shall not be deemed a breach of this
Agreement.
(f)
Paiz agrees that for a period of two years following the
termination of his employment he will not directly or indirectly
solicit or attempt to solicit, by any means, any employee or
consultant of the Company or any of its affiliates to leave or
terminate their employment or consulting with the Company or its
affiliates.
(g)
Paiz agrees that he will not make any statement that is disparaging
of the Company or any of its affiliates, or any of their respective
directors, employees or distributors (except to the extent
necessary to respond truthfully to any inquiry from applicable
regulatory authorities or to provide information pursuant to legal
process).
4.
Early Resignation or Termination for Cause .
In the event that
Paiz either (a) voluntarily resigns his employment with an
effective date prior to August 31, 2007, or (b) is involuntarily
terminated by the Company for “Cause,” Paiz shall not
be entitled to the benefits described in Section 2(b) hereof,
but shall only be entitled to salary, accrued benefits and other
amounts legally owing to Paiz through the date of employment
termination. In the event of the foregoing, the Company shall
thereafter have no further obligations to Paiz under this Agreement
or the CIC Agreement (as defined below).
For purposes
hereof, “Cause” shall have the definition given it in
that certain Agreement Re: Change in Control between Paiz and
the Company dated as of April 13, 2003 and as thereafter amended
(the “CIC Agreement”). The parties acknowledge
that the CIC Agreement remains in full force and effect and,
subject to the first paragraph of this Section 4, shall govern the
parties’ rights and obligations in the event of a Change in
Control (as defined in the CIC Agreement) in accordance with the
terms and conditions therein.
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5.
Equity Compensation .
Paiz’s
vested stock options issued under the Company’s Amended and
Restated 2001 Equity Incentive Plan (the “Equity Plan”)
shall, pursuant to the terms and conditions of the Equity Plan and
Paiz’s Stock Option Award Agreements, be exercisable by Paiz
for a period of 90 days following the Termination Date. All
options not vested as of the Termination Date and all shares of
restricted stock for which restrictions have not lapsed (the
“Restricted Shares”) as of the Termination Date shall
be cancelled and/or shall not be exercisable. Pursuant to and
in accordance with the terms of the Equity Plan and Paiz’s
Restricted Stock Award Agreements, the Company shall repurchase any
remaining Restricted Shares following the Termination Date for an
amount equal to $0.01 per share, without interest or
premium.
6.
No Claims Filed .
Paiz represents
that he has not filed any complaints, charges or lawsuits against
the Company or against (1) any current or former officers,
directors, shareholders, employees and agents of the Company, (2)
any current or former affiliate or related entity of the Company
(including subsidiaries and divisions), or (3) the current or
former officers, directors, shareholders, employees and agents of
said affiliates or related entities (including subsidiaries and
divisions), that he will not file any lawsuit or claim against any
of these entities or persons at any time hereafter for any event
occurring prior to the date of this Agreement, and that if any
court assumes jurisdiction of any lawsuit or claim against any of
these entities or persons on behalf of Paiz, he will promptly
request that the matter be dismissed with prejudice. This
provision does not affect Paiz’s right to file a charge or
complaint with the Equal Employment Opportunity Commission, nor
does it affect his statutory right to indemnification from the
Company.
7.
Release .
As a material
inducement to enter into this Agreement, Paiz hereby irrevocably
and unconditionally releases, acquits and forever discharges the
Company and all of its current and former subsidiaries, parent
companies, affiliates, divisi
