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)        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 


 


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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 


 


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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 


 


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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.


 


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(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

  	
   

  	
  John
  Tamerius, Ph.D.

  
	
  10165
  McKellar Court

  	
   

  	
  727
  Ashbury

  
	
  San
  Diego, CA 92121

  	
   

  	
  San
  Francisco, CA 94117

  
	
  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/
  Caren Mason

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: 
  President & CEO

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  John
  Tamerius, Ph.D.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Tamerius

  



 


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