Exhibit
10.2


 


AGREEMENT
RE:  CHANGE IN CONTROL


 


This AGREEMENT RE:  CHANGE IN CONTROL (this “Agreement”) is dated
as of November 8, 2004 and is entered into by and between Thomas J.
Foley (“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 the date first written
above 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


 


2





















 


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 overall
compensation 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. 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


 


3





















 


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 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 arrangements; provided, however, that Executive’s signing
bonus of $50,000 (the “Signing Bonus”) shall not be included in
calculating Executive’s Bonus Increment. Executive shall not be obligated,
however, to repay or return any portion of the Signing Bonus if Executive’s
employment is terminated by the Company without Cause following, or within
thirty (30) days prior to, a Change in Control.


 


(b)                                 In lieu of a cash lump
sum, Executive may, in his sole discretion, elect to receive the Severance
Payment provided by this Section in equal annual installments over three
(3) years. Such installments shall be paid to Executive on each anniversary of
the date of Executive’s Qualifying Termination, beginning with the first such
anniversary and continuing on each such anniversary thereafter until fully paid.
Such election to receive the Severance Payment in installments may be made
and/or revoked by Executive at any time prior to the occurrence of a Change in
Control by written notice to the Board of Directors of the Company. Upon the
occurrence of a Change in Control, any such election to receive the Severance
Payment in installments that has been made and not revoked prior to the Change
in Control shall be irrevocable and binding on both the Company and Executive. In
the event that at the time of a Change in Control there is not in effect an
election by Executive to receive the Severance Payment in installments, such
Severance Payment shall be paid to Executive in a single cash lump sum as
provided in subparagraph (a) above.


 


(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


 


4





















 


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.


 


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 exerciseable 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, group-term life insurance, and
disability 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 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


 


5





















 


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


 


6





















 


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(1) (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


 


7





















 


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

  	
  Thomas J. Foley

  
	
   

  	
  10165 McKellar Court

  	
  22486 Almaden

  
	
   

  	
  San Diego, CA 92121

  	
  Mission Viejo, CA 92691

  
	
   

  	
  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,


 


8





















 


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 of 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]


 


9





















 


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/ Paul E.
  Landers

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President,
  Chief Financial Officer and Secretary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Thomas J. Foley

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  Foley

  	
   

  
					



 


10