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.


 


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(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)           [Intentionally Deleted.]


 


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(c)           The
Severance Payment hereunder is in lieu of any severance payment that Executive
might otherwise be entitled to from the Company in the event of a Change in
Control under the Company’s applicable severance pay policies, if any, or under
any other oral or written agreement; provided, however, that
Executive shall continue to be entitled to receive the severance pay benefits
under the Company’s applicable policies, if any, or under another written
agreement if and to the extent Executive’s termination is not a Qualifying
Termination after, or within thirty (30) days prior to, a Change in Control.


 


(d)           Notwithstanding any provision of this Agreement to the contrary, if, at
the time of Executive’s termination of employment with the Company, Executive
is a “specified employee” as defined in Section 409A of the Code, and one
or more of the payments or benefits received or to be received by Executive
pursuant to this Agreement (or any portion thereof) would become subject to the
additional tax under Section 409A(a)(1)(B) of the Code or any other
taxes or penalties imposed under Section 409A of the Code (the “Section 409A
Taxes”) if provided at the time otherwise required under this Agreement, no
such payment or benefit will be provided under this Agreement until the earlier
of (a) the date which is six (6) months after Executive’s “separation
from service” or (b) the date of Executive’s death, or such shorter period
that, as determined by the Company, is sufficient to avoid the imposition of Section 409A
Taxes.  The provisions of this Section 6(d) shall
only apply to the minimum extent required to avoid Executive’s incurrence of
any Section 409A Taxes.  In
addition, if any provision of this Agreement would cause Executive to incur any
penalty tax or interest under Section 409A of the Code or any regulations
or Treasury guidance promulgated thereunder, the Company may reform such
provision to maintain to the maximum extent practicable the original intent of
the applicable provision without violating the provisions of Section 409A
of the Code.


 


7.             Additional
Benefits.


 


(a)           In
the event of a Qualifying Termination, any and all unvested stock options of
Executive shall immediately become fully vested and exercisable and any and all
restrictions on Executive’s restricted stock shall immediately and
automatically lapse.


 


(b)           In
the event of a Qualifying Termination, Executive shall be entitled to continue
to participate in the following executive benefit programs which had been made
available to Executive (including his family) before the Qualifying
Termination: group medical insurance, group dental insurance, and group vision
insurance. These programs shall be continued at no cost to Executive, except to
the extent that tax rules require the inclusion of the value of such
benefits in Executive’s income. The programs shall be continued in the same way
and at the same level as immediately prior to the Qualifying Termination.  The programs shall continue for Executive’s
benefit for two (2) years after the date of the Qualifying Termination; provided,
however, that Executive’s participation in each of such programs shall
be earlier terminated or reduced, as applicable, if and to the extent Executive
receives benefits as a result of concurrent coverage through another program.


 


(c)           In
the event of a Qualifying Termination, Executive shall be entitled to receive
from the Company, upon such Termination, the sum of $25,000 to help defray
legal fees, tax and accounting fees, executive outplacement services, and other
costs associated with transitional matters.


 


8.             Limitation
on Payments.  Notwithstanding
anything to the contrary herein, in the event that the sum aggregate present
value of (i) the Severance Payment payable under Section 6 hereof, (ii) any
and all additional amount or benefits which may be paid or conferred to or on
behalf of Executive in accordance with Section 7 hereof, and (iii) any
and all other amounts or benefits paid or conferred to or on behalf of
Executive would constitute a “parachute payment” (“parachute payment” as used
in this Agreement shall be defined in accordance with Section 280G(b)(2),
or any successor thereto, of the Internal Revenue Code of 1986, as amended),
the payments under this Agreement shall be reduced (by the minimum possible
amounts) until no amount payable to Executive under this Agreement constitutes
a parachute payment; provided, however, that no such reduction
under this Section 8 shall be made if the net after-tax payment (after
taking into account, Federal, state, local or other income and excise taxes) to
which Executive would otherwise be entitled without such reduction would be
greater than the net after-tax payment (after taking into account Federal,
state, local or other income and excise taxes) to Executive resulting from the
receipt of such payments with such reduction. If, as a result of subsequent
events or conditions (including a subsequent payment or absence of a subsequent
payment under this Agreement), it is determined that payments hereunder have been
reduced by


 


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more than the minimum amount
required under this Section 8, then an additional payment shall be promptly
made to Executive in an amount equal to the excess reduction. All
determinations required to be made under this Section 8, including whether
a payment would result in a parachute payment and the assumptions to be
utilized in arriving at such determination, shall be made and approved within
fifteen (15) days after the Qualifying Termination by both (1) accountants
selected by the Company and (2) Executive’s designated financial advisor.


 


9.                                       Nonsolicitation
Covenant. In consideration of the payments to be made to Executive
hereunder, Executive hereby covenants, for a period of two (2) years
following the Qualifying Termination, that he will not, directly or indirectly
(whether as an officer, director, employee, individual proprietor, control
shareholder, consultant, partner or otherwise) (i) solicit, recruit or
hire-away any employee of the Company or successor of the Company or (ii) solicit,
influence or attempt to influence any person or entity to terminate such person’s
or entity’s contractual and/or business relationship with the Company or
successor of the Company. With regard to this Section 9, Executive
acknowledges that the provisions herein are reasonable in both scope and
duration and necessary to protect the business of the Company or its successor.


 


10.                                 Rights
and Obligations Prior to a Change in Control. Prior to the date which is
thirty (30) days before a Change in Control, the rights and obligations of
Executive with respect to his employment by the Company shall be determined in
accordance with the policies and procedures adopted from time to time by the
Company and the provisions of any written employment contract in effect between
the Company and Executive from time to time. This Agreement deals only with
certain rights and obligations of Executive subsequent, or within thirty (30)
days prior to, a Change in Control, and the existence of this Agreement shall
not be treated as raising any inference with respect to what rights and
obligations exist prior to the date which is thirty (30) days before a Change
in Control. Unless otherwise expressly set forth in a separate written
employment agreement between Executive and the Company, the employment of
Executive is expressly at-will, and Executive or the Company may terminate
Executive’s employment with the Company at any time and for any reason, with or
without cause, provided that if such termination occurs within thirty (30) days
prior to or three (3) years after a Change in Control and constitutes a
Qualifying Termination (as defined in Section 5 above) the provisions of
this Agreement shall govern the payment of the Severance Payment and certain
other benefits as provided herein.


 


11.                                 Non-Exclusivity
of Rights. Subject to Section 6(c) hereof, nothing in this
Agreement shall prevent or limit Executive’s continuing or future participation
in any benefit, bonus, incentive or other plan or program provided by the
Company or any of its affiliated companies and for which Executive may qualify,
nor shall anything herein limit or otherwise affect such rights as Executive
may have under any stock option or other agreements with the Company or any of
its affiliated companies. Except as otherwise provided in Section 6(c) hereof,
amounts which are vested benefits or which Executive is otherwise entitled to
receive under any plan or program of the Company or any of its affiliated
companies at or subsequent to the date of any Qualified Termination shall be
payable in accordance with such plan or program.


 


12.                                 Full
Settlement.  The Company’s obligation
to make the payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off, counter-claim,
recoupment, defense or other claim, right, or action which the Company may have
against Executive or others. In no event shall Executive be obligated to seek
other employment or to take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which Executive may reasonably incur as a result of Executive’s
successful collection efforts to receive amounts payable hereunder, or as a
result of any contest (regardless of the outcome thereof) by the Company or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a
result of any contest by Executive about the amount of any payment pursuant to
this Section).


 


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13.                                 Successors.


 


(a)                                  This Agreement is
personal to Executive, and without the prior written consent of the Company
shall not be assignable by Executive other than by will or the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by Executive’s legal representatives.


 


(b)                                 The rights and
obligations of the Company under this Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the Company.


 


14.                                 Governing
Law.            This Agreement is made
and entered into in the State of California, and the internal laws of
California shall govern its validity and interpretation in the performance by
the parties hereto of their respective duties and obligations hereunder.


 


15.                                 Modifications.  This Agreement may be amended or modified
only by an instrument in writing executed by all of the parties hereto.


 


16.                                 Dispute
Resolution.


 


(a)                                  Any controversy or
dispute between the parties involving the construction, interpretation,
application or performance of the terms, covenants, or conditions of this
Agreement or in any way arising under this Agreement (a “Covered Dispute”)
shall, on demand by either of the parties by written notice served on the other
party in the manner prescribed in Section 17 hereof, be referenced
pursuant to the procedures described in California Code of Civil Procedure (“CCP”)
Sections 638, et  seq., as they may be amended from time to time
(the “Reference Procedures”), to a retired Judge from the Superior Court for
the County of San Diego or the County of Orange for a decision.


 


(b)                                 The Reference
Procedures shall be commenced by either party by the filing in the Superior
Court of the State of California for the County of San Diego or the County of
Orange of a petition pursuant to CCP Section 638(a) (a “Petition”).
Said Petition shall designate as a referee a Judge from the list of retired San
Diego County and Orange County Superior Court Judges who have made themselves
available for trial or settlement of civil litigation under said Reference
Procedures. If the parties hereto are unable to agree on the designation of a
particular retired San Diego County or Orange County Superior Court Judge or
the designated Judge is unavailable or unable to serve in such capacity,
request shall be made in said Petition that the Presiding or Assistant
Presiding Judge of the San Diego County Superior Court or the Orange County
Superior Court, as relevant, appoint as referee a retired San Diego County or
Orange County Superior Court Judge from the aforementioned list.


 


(c)                                  Except as hereafter
agreed by the parties, the referee shall apply the internal law of California
in deciding the issues submitted hereunder. Unless formal pleadings are waived
by agreement among the parties and the referee, the moving party shall file and
serve its complaint within 15 days from the date a referee is designated as
provided herein, and the other party shall have 15 days thereafter in which to
plead to said complaint. Each of the parties reserves its respective rights to
allege and assert in such pleadings all claims, causes of action, contentions
and defenses which it may have arising out of or relating to the general
subject matter of the Covered Dispute that is being determined pursuant to the
Reference Procedures. Reasonable notice of any motions before the referee shall
be given, and all matters shall be set at the convenience of the referee.
Discovery shall be conducted as the parties agree or as allowed by the referee.
Unless waived by each of the parties, a reporter shall be present at all
proceedings before the referee.


 


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(d)                                 It
is the parties’ intention by this Section 16 that all issues of fact and
law and all matters of a legal and equitable nature related to any Covered
Dispute will be submitted for determination by a referee designated as provided
herein. Accordingly, the parties hereby stipulate that a referee designated as
provided herein shall have all powers of a Judge of the Superior Court
including, without limitation, the power to grant equitable and interlocutory
and permanent injunctive relief.


 


(e)                                  Each
of the parties specifically (i) consents to the exercise of jurisdiction
over his person by a referee designated as provided herein with respect to any
and all Covered Disputes; and (ii) consents to the personal jurisdiction
of the California courts with respect to any appeal or review of the decision
of any such referee.


 


(f)                                    Each
of the parties acknowledges that the decision by a referee designated as
provided herein shall be a basis for a judgment as provided in CCP Section 644
and shall be subject to exception and review as provided in CCP Section 645.


 


17.                                 Notices.  Any notice or communications required or
permitted to be given to the parties hereto shall be delivered personally or be
sent by United States registered or certified mail, postage prepaid and return
receipt requested, and addressed or delivered as follows, or at such other
addresses the party addressed may have substituted by notice pursuant to this
Section:


 




	
  Quidel Corporation

  	
   

  	
  Robert Bujarski

  
	
  10165 McKellar Court

  	
   

  	
  6829 Jade Lane

  
	
  San Diego, CA 92121

  	
   

  	
  Carlsbad, CA  92009

  
	
  Attn: President

  	
   

  	
   

  






 


18.                                 Captions.  The captions of this Agreement are inserted for
convenience and do not constitute a part hereof.


 


19.                                 Severability.  In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein and there shall be deemed substituted
for such invalid, illegal or unenforceable provision such other provision as
will most nearly accomplish the intent of the parties to the extent permitted
by the applicable law. In case this Agreement, or any one or more the
provisions hereof, shall be held to be invalid, illegal or unenforceable within
any governmental jurisdiction or subdivision thereof, this Agreement or any
such provision thereof shall not as a consequence thereof be deemed to be
invalid, illegal or unenforceable in any other governmental jurisdiction or
subdivision thereof.


 


20.                                 Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one in the same Agreement.


 


[Remainder of page left blank intentionally,
signatures on following page]


 


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IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first written above in San
Diego, California.


 


	
   

  	
  Quidel Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Phyllis Huckabee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:  Vice President, Human
  Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Robert Bujarski

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Bujarski

  



 


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