Exhibit 10.1
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this
“ Agreement ”) is made and entered into as of
the 31st day of March, 2009 by and between QUIDEL CORPORATION, a
Delaware corporation (the “ Company ”), and
THOMAS J. FOLEY, an individual (“Foley”).
BACKGROUND
A.
Foley currently serves as the
Company’s Chief Technology Officer. Pursuant to
pre-existing and continuing employment and related understandings
and agreements, Foley’s employment with the Company is
“at will.”
B.
The Company and Foley have agreed
that Foley’s employment with the Company will terminate no
later than December 31, 2009 (the “Termination
Date”).
C.
The Company and Foley are entering
into this Agreement to confirm their understandings as to
Foley’s employment prior to the Termination Date and each
party’s commitments and obligations on and after the
Termination Date.
AGREEMENT
1.
Employment
. Except as provided in Section 4
hereof, the Company shall continue to employ Foley on a full-time
basis in his current position until May 31, 2009, and Foley
accepts such continued employment, upon and subject to the terms
and conditions set forth herein. Foley acknowledges and
agrees that, as of June 1, 2009, provided he has signed and
not revoked the Release required by Section 4 hereof, his
title will be changed to “Special Advisor to the Chief
Executive Officer,” a position that will report to, and
involve duties determined by, the Chief Executive Officer.
Unless earlier terminated pursuant to this Agreement, Foley will
remain in this position until December 31, 2009. In such
role, Foley agrees to make himself available on an as-needed basis
and generally up to seventy (70) hours per month for assignments
and to dutifully complete such assignments to the best of his
ability at such locations as reasonably designated by the Chief
Executive Officer.
2.
Term
. The term of Foley’s
employment shall continue until, and then automatically terminate,
on December 31, 2009, unless earlier terminated pursuant to
this Agreement.
3.
Employment
Compensation .
Until May 31, 2009, Foley’s base salary shall continue
at the same level as in effect as of the date of this
Agreement. Effective June 1, 2009, provided he has
signed and not revoked the Release pursuant to Section 4
hereof, Foley’s base salary shall automatically be reduced to
$10,000 per month, less applicable withholdings and subject
to the Company’s payroll policies.
Foley’s employee benefits
shall continue until December 31, 2009 at the same levels as
are in effect as of the date of this Agreement, provided that he
has signed and not revoked the Release pursuant to Section 4
hereof; provided, however, that Foley shall not receive any further
grants of equity incentive awards nor shall he be eligible to
participate in any bonus plans applicable to fiscal year 2009 or
any year thereafter. Foley’s accrued vacation will be
paid out based on his current base pay at the time of the signing
of this Agreement.
4.
Release
. On or before May 10,
2009 , and as a material condition to Foley’s
(a) continued employment hereunder pursuant to Sections 1
and 3 hereof, and (b) receipt of the benefits set forth in
Section 6 hereof, Foley shall execute and deliver to the
Company (and thereafter not revoke) a Release in the form attached
hereto as Exhibit A . For avoidance of doubt, the
parties acknowledge and agree that Foley’s failure to deliver
(and not thereafter revoke) the Release in the time period
specified above shall result in termination of employment on or
before May 18, 2009 and no further vesting of Foley’s
equity awards thereafter.
5.
Foley’s Acknowledgements
and Obligations .
As a material condition to Foley’s receipt of
the benefits set forth in Section 6 hereof, Foley acknowledges
and reaffirms his continuing obligation to adhere to the Agreement
Re Confidential Information, Inventions, Non-Solicitation and
Conflicts of Interest (“Confidentiality Agreement”) he
signed on October 28, 2004. In particular, Foley
reaffirms his obligations under Section 4 of the
Confidentiality Agreement, which precludes soliciting of or causing
employees to leave their employment with Quidel for one year
following the termination of his employment.
6.
Vesting of Equity
Awards . The
vesting of equity awards (restricted stock and options) held by
Foley shall not be accelerated. Such equity awards shall,
during Foley’s continuing employment, continue to vest and be
governed in accordance with the Company’s Amended and
Restated 2001 Equity Incentive Plan and specific equity award grant
documentation. All equity awards held by Foley at the time of
the termination of his employment shall also be handled in
accordance with the Company’s Amended and Restated 2001
Equity Incentive Plan and grant documentation.
7.
Early Resignation or
Termination .
In the event that Foley either (a) voluntarily resigns his
employment with an effective date prior to the Termination Date, or
(b) is terminated by the Company with “Cause” (as
defined below), Foley shall not be entitled to the payments,
benefits or vesting of equity described in Section 3 or
Section 6 hereof, but shall only be entitled to salary,
accrued benefits and other amounts legally owing to Foley through
the date of employment termination. The Company shall
thereafter have no further obligations to Foley under this
Agreement.
In the event that Foley is
terminated by the Company without “Cause” (as defined
below), provided that Foley executes and delivers to the Company
within 21 calendar days after such termination (and thereafter does
not revoke) a Release in the form attached hereto as
Exhibit A , Foley shall be entitled to receive the
following severance payments and benefits: (i) a
lump-sum payment equal to the remaining amount of base salary that
Foley would have received if the term of this Agreement had
continued until December 31, 2009, less applicable taxes and
withholdings, payable within thirty (30) days from the date of
termination, (ii) the employee benefits described in the
second paragraph of Section 3 hereof through December 31,
2009, and (iii) the vesting of equity awards, as and to the
extent described in and contemplated by Section 6 hereof, as
though Foley’s employment continued through December 31,
2009.
2
For purposes hereof,
“Cause” shall be limited to the following:
(1) fraud; (2) personal dishonesty involving money or
property of the Company or that results in material harm to the
Company; (3) Foley’s willful misconduct that is
injurious to the Company; (4) a serious breach of a fiduciary
duty to the Company involving personal profit;
(5) Foley’s conviction for a felony (including via a
guilty or nolo contendere plea), excluding traffic offenses;
(6) Foley’s willful and continued neglect of duties
(other than any such failure resulting from his incapacity because
of physical or mental illness); or (7) Foley’s material
breach of this Agreement; provided, however, that unsatisfactory
job performance shall not be considered Cause for termination of
Foley’s employment by the Company. Foley shall be
afforded a reasonable opportunity of up to 30 days to cure any
willful neglect of his duties and any other alleged material breach
of this Agreement if such breach is reasonably susceptible of
cure. If, in the reasonable good faith judgment of the
Company, the alleged breach is not reasonably susceptible of cure,
or such circumstances or material breach has not satisfactorily
been cured within such thirty (30) day period, such neglect of
duties or material breach shall thereupon constitute
“Cause.”
8.
Confidentiality of Business
and Legal Information . Foley acknowledges that the Company
holds as confidential and/or privileged certain information
(including, but not limited to, non-public information obtained by
Foley in his position as an officer of the Company), as well as
certain trade secret information and knowledge concerning the
intimate and confidential affairs of the Company and the various
phases of its business, including, for example and without
limitation, processes, formulae, data and know-how, improvements,
inventions, techniques, marketing plans, strategies, forecasts,
mailing lists, customer lists, pricing information, manufacturing
processes, distribution systems, computer systems or programs and
other types of similar information within Foley’s knowledge
by virtue of his employment with the Company (collectively, the
foregoing shall be referred to herein as “ Confidential
Trade Se
