exv10w2






Exhibit 10.2




AGREEMENT RE: CHANGE IN CONTROL




     This AGREEMENT RE: CHANGE IN CONTROL (this “Agreement”) is dated as of February 19, 2010 and
is entered into by and between David Scholl (“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 the date of
commencement of work 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 within 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
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) 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




 









 






(except as otherwise expressly agreed to, in writing, by both parties, including whether
prior to or after the execution of this Agreement).




     (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 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).



     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.



 









 






     (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
	 	David Scholl
	 	 
	 

	 	10165 McKellar Court
	 	8108 Rolling Hills Drive	 	 
	 

	 	San Diego, CA 92121
	 	Athens, OH 45701	 	 
	 

	 	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]






 









 








     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, with respect to the
Company, and Athens, Ohio, with respect to Executive.



	 	 	 	 	 
	 	Quidel Corporation

 	 
	 	By: 	/s/ Douglas Bryant
 	 
	 	 	Title:  President & CEO 	 
	 	 	 	 
	 
	 	David Scholl

 	 
	 	By: 	/s/ David Scholl