Exhibit 10.1


 


SEPARATION AGREEMENT


 


THIS SEPARATION AGREEMENT (this “Agreement”) is
made and entered into as of the 31st day of March, 2009 by and between QUIDEL
CORPORATION, a Delaware corporation (the “Company”), and THOMAS
J. FOLEY, an individual (“Foley”).


 


BACKGROUND


 


A.            Foley
currently serves as the Company’s Chief Technology Officer.  Pursuant to pre-existing and continuing
employment and related understandings and agreements, Foley’s employment with
the Company is “at will.”


 


B.            The
Company and Foley have agreed that Foley’s employment with the Company will
terminate no later than December 31, 2009 (the “Termination Date”).


 


C.            The
Company and Foley are entering into this Agreement to confirm their
understandings as to Foley’s employment prior to the Termination Date and each
party’s commitments and obligations on and after the Termination Date.


 


AGREEMENT


 


1.             Employment.  Except as provided in Section 4 hereof,
the Company shall continue to employ Foley on a full-time basis in his current
position until May 31, 2009, and Foley accepts such continued employment,
upon and subject to the terms and conditions set forth herein.  Foley acknowledges and agrees that, as of June 1,
2009, provided he has signed and not revoked the Release required by Section 4
hereof, his title will be changed to “Special Advisor to the Chief Executive
Officer,” a position that will report to, and involve duties determined by, the
Chief Executive Officer.  Unless earlier
terminated pursuant to this Agreement, Foley will remain in this position until
December 31, 2009.  In such role, Foley
agrees to make himself available on an as-needed basis and generally up to
seventy (70) hours per month for assignments and to dutifully complete such
assignments to the best of his ability at such locations as reasonably
designated by the Chief Executive Officer.


 


2.             Term.  The term of Foley’s employment shall continue
until, and then automatically terminate, on December 31, 2009, unless
earlier terminated pursuant to this Agreement.


 


3.             Employment Compensation.  Until May 31, 2009, Foley’s base salary
shall continue at the same level as in effect as of the date of this
Agreement.  Effective June 1, 2009, provided
he has signed and not revoked the Release pursuant to Section 4 hereof, Foley’s
base salary shall automatically be reduced to $10,000  per month, less applicable withholdings and
subject to the Company’s payroll policies.


 


Foley’s employee benefits shall continue until December 31, 2009
at the same levels as are in effect as of the date of this Agreement, provided
that he has signed and not revoked the Release pursuant to Section 4
hereof; provided, however, that Foley shall not receive any further grants of equity
incentive awards nor shall he be eligible to participate in any bonus plans applicable
to fiscal year 2009 or any year thereafter. 
Foley’s accrued vacation will be paid out based on his current base pay
at the time of the signing of this Agreement.


 

















 


4.             Release.  On or before May 10, 2009 , and as a
material condition to Foley’s (a) continued employment hereunder pursuant
to Sections 1 and 3 hereof, and (b) receipt of the benefits set forth
in Section 6 hereof, Foley shall execute and deliver to the Company (and
thereafter not revoke) a Release in the form attached hereto as Exhibit A.  For avoidance of doubt, the parties
acknowledge and agree that Foley’s failure to deliver (and not thereafter
revoke) the Release in the time period specified above shall result in termination
of employment on or before May 18, 2009 and no further vesting of Foley’s
equity awards thereafter.


 


5.             Foley’s Acknowledgements and Obligations.  As a material
condition to Foley’s receipt of the benefits set forth in Section 6
hereof, Foley acknowledges and reaffirms his continuing obligation to adhere to
the Agreement Re Confidential Information, Inventions, Non-Solicitation and
Conflicts of Interest (“Confidentiality Agreement”) he signed on October 28, 2004.
 In particular, Foley reaffirms his
obligations under Section 4 of the Confidentiality Agreement, which
precludes soliciting of or causing employees to leave their employment with
Quidel for one year following the termination of his employment.


 


6.             Vesting of Equity Awards.  The vesting of equity awards (restricted
stock and options) held by Foley shall not be accelerated.  Such equity awards shall, during Foley’s
continuing employment, continue to vest and be governed in accordance with the
Company’s Amended and Restated 2001 Equity Incentive Plan and specific equity
award grant documentation.  All equity awards
held by Foley at the time of the termination of his employment shall also be
handled in accordance with the Company’s Amended and Restated 2001 Equity
Incentive Plan and grant documentation.


 


7.             Early Resignation or Termination.  In the event that Foley either (a) voluntarily
resigns his employment with an effective date prior to the Termination Date, or
(b) is terminated by the Company with “Cause” (as defined below), Foley
shall not be entitled to the payments, benefits or vesting of equity described
in Section 3 or Section 6 hereof, but shall only be entitled to
salary, accrued benefits and other amounts legally owing to Foley through the
date of employment termination.  The
Company shall thereafter have no further obligations to Foley under this
Agreement.


 


In the event that Foley is terminated by the Company without “Cause”
(as defined below), provided that Foley executes and delivers to the Company
within 21 calendar days after such termination (and thereafter does not revoke)
a Release in the form attached hereto as Exhibit A, Foley shall be
entitled to receive the following severance payments and benefits:  (i) a lump-sum payment equal to the
remaining amount of base salary that Foley would have received if the term of
this Agreement had continued until December 31, 2009, less applicable taxes
and withholdings, payable within thirty (30) days from the date of termination,
(ii) the employee benefits described in the second paragraph of Section 3
hereof through December 31, 2009, and (iii) the vesting of equity
awards, as and to the extent described in and contemplated by Section 6
hereof, as though Foley’s employment continued through December 31, 2009.


 


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For purposes hereof, “Cause” shall be limited to the
following:  (1) fraud; (2) 
personal dishonesty involving money or property of the Company or that results
in material harm to the Company; (3) Foley’s willful misconduct that is
injurious to the Company; (4) a serious breach of a fiduciary duty to the
Company involving personal profit; (5) Foley’s conviction for a felony
(including via a guilty or nolo contendere
plea), excluding traffic offenses; (6) Foley’s willful and continued
neglect of duties (other than any such failure resulting from his incapacity
because of physical or mental illness); or (7) Foley’s material breach of
this Agreement; provided, however, that unsatisfactory job performance shall
not be considered Cause for termination of Foley’s employment by the
Company.  Foley shall be afforded a
reasonable opportunity of up to 30 days to cure any willful neglect of his duties
and any other alleged material breach of this Agreement if such breach is
reasonably susceptible of cure.  If, in
the reasonable good faith judgment of the Company, the alleged breach is not
reasonably susceptible of cure, or such circumstances or material breach has
not satisfactorily been cured within such thirty (30) day period, such neglect
of duties or material breach shall thereupon constitute “Cause.”


 


8.             Confidentiality of Business and Legal Information.  Foley acknowledges
that the Company holds as confidential and/or privileged certain information
(including, but not limited to, non-public information obtained by Foley in his
position as an officer of the Company), as well as certain trade secret
information and knowledge concerning the intimate and confidential affairs of
the Company and the various phases of its business, including, for example and without limitation, processes, formulae, data and know-how,
improvements, inventions, techniques, marketing plans, strategies, forecasts,
mailing lists, customer lists, pricing information, manufacturing processes,
distribution systems, computer systems or programs and other types of similar
information within Foley’s knowledge by virtue of his employment with the
Company (collectively, the foregoing shall be referred to herein as “Confidential Trade Secret, Proprietary and Legal Information”).
Foley agrees that all Confidential Trade Secret, Proprietary and Legal
Information shall be the sole property of the Company and that the Company
shall be and is the sole owner of all patents and other rights in connection
therewith as well as any privileges.  Foley
further agrees to hold in strictest confidence and to refrain from using or
disclosing to any other person or entity any Confidential Trade Secret,
Proprietary and Legal Information, other than the Company, its employees,
Directors and representatives.  In that
regard, Foley expressly acknowledges that he has not disclosed (other than to
the Company, its employees, Directors and representatives) any Confidential
Trade Secret, Proprietary and Legal Information.  Foley specifically agrees that he will not
disclose any Confidential Trade Secret, Proprietary and Legal Information at
any time in the future (other than to the Company, its employees, Directors and
representatives).  Foley further
represents and warrants that, on the last day of his employment, he will have returned
to the Company all property and documents of the Company, whether kept
electronically or in hard copy form and will have retained no copies thereof.  This Section supplements
the obligations of Foley contained in Section 5 hereof.


 


9.             Confidentiality of Agreement


 


Foley agrees to keep the provisions of this Separation Agreement
confidential, and that, except as compelled by law, he will not disclose any
information concerning this Separation Agreement to anyone other than to his
attorney, accountant and spouse, and to them only on the condition that each
such person to whom such information is disclosed will be specifically
instructed not to disclose in any manner any such information to any other
person.


 


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10.          Entire Agreement


 


This Separation Agreement sets forth the entire agreement between the
parties hereto and, except for the Confidentiality Agreement, fully supersedes
any and all prior agreements or understandings between the parties pertaining
to the subject matter hereof.  For the avoidance
of doubt, the term of the Agreement Re: Change in Control between the Company
and Foley dated November 8, 2004, as amended (the “CIC Agreement”), shall
automatically expire as of the date of this Separation Agreement (after which
the CIC Agreement will be of no force or effect), and except as expressly
provided herein, Foley shall not be entitled to any payments or benefits of any
kind in connection with a termination or resignation for any reason.  The parties agree that no amendment or
modification of this Separation Agreement shall be effective unless it is in
writing signed by both parties.


 


11.          Miscellaneous.


 


a.             Notices.  Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and delivered in person or
sent by registered or certified mail to Foley’s residence in the case of Foley
or to its principal office in the case of the Company.


 


b.             Arbitration.  Any dispute arising out of this Agreement
shall be resolved exclusively by final and binding arbitration, before a single
arbitrator, in San Diego, California pursuant to the rules of JAMS.  Judgment upon any such arbitration award may
be entered by any state or federal court of competent jurisdiction.  In the event any party to this Agreement
initiates any arbitration action or proceeding in connection with enforcement
of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs and attorney’s fees from the non-prevailing
party.


 


c.             Waiver.  The waiver of any provision of this Agreement
shall not operate or be construed as a waiver of any other provision of this
Agreement.  No waiver shall be valid
unless in writing and executed by the party to be charged therewith.


 


d.             Severability/Modification.  In the event that any clause or provision of
this Agreement shall be determined to be invalid, illegal or unenforceable,
such clause or provision may be severed or modified to the extent necessary,
and, as severed and/or modified, this Agreement shall remain in full force and
effect.


 


e.             Assignment.  This Agreement may not be assigned by Foley.  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.


 


f.              Governing Law and Jurisdiction.  This Agreement shall be interpreted,
construed, and enforced under the internal laws of the State of
California.  The courts and authorities
of the State of California shall have sole jurisdiction and venue for purposes
of enforcing the arbitration agreement above.


 


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


 


IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.


 


	
   

  	
   

  	
  QUIDEL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert J. Bujarski

  
	
   

  	
   

  	
   

  	
    Name:

  	
  Robert J. Bujarski

  
	
   

  	
   

  	
   

  	
    Title:

  	
  Senior Vice President, General Counsel and Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THOMAS J. FOLEY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    /s/ Thomas J. Foley

  



 


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EXHIBIT A


 


GENERAL RELEASE


 


In consideration of the Separation Agreement by Quidel Corporation (the
“Company”) and Thomas J. Foley (“Foley”), Foley hereby gives the following
General Release which will be effective 8 days after he signs and does not
revoke it.


 


1.             Release of Claims.  Foley hereby
irrevocably and unconditionally releases, acquits and forever discharges the
Company, its affiliated companies and the Releasees (as defined below) from any
and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, remedies, costs, losses, debts, expenses and attorneys’ fees,
including those arising out of or in connection with Foley’s employment with
and/or consulting for the Company and/or the termination thereof.  (All such charges, complaints, etc. are
collectively referred to herein as “Claims.”) 
The Claims irrevocably and unconditionally released, acquitted and
forever discharged include, for example and without limitation, Claims arising
under the federal Age Discrimination in Employment Act of 1967, Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Americans With
Disabilities Act, the California Fair Employment and Housing Act, the
California Labor Code, claims under any state, federal and local statutes,
claims for employment discrimination, tort claims and common law employment and
wrongful discharge claims.


 


The Claims irrevocably and unconditionally released, acquitted and
forever discharged by Foley extend to all such Claims by Foley against any and
all of the current and former owners, stockholders, predecessors, successors,
assigns, agents, directors, officers, employees, representatives, attorneys,
divisions, parents, subsidiaries, affiliates (and the directors, officers,
employees, representatives and attorneys of such divisions, parents,
subsidiaries and affiliates) of the Company and all other persons acting by,
through, under or in concert with any of them. 
All such persons and entities, as well as the Company, are collectively
referred to herein as the “Releasees”. 
The Claims irrevocably and unconditionally released, acquitted and
forever discharged herein by Foley also extend to all Claims which Foley now
has, owns or holds, or contends to have, own or hold or which Foley at any time
heretofore had, owned or held or contended to hold against any of the
Releasees.  Foley represents that he has
not heretofore assigned or transferred or purported to have assigned or
transferred to any person or entity any Claims released, acquitted and forever
discharged herein.  This General Release (a) shall
not affect any Claims that Foley may have which arise solely after the effective
date of this General Release, (b) shall not apply to any of the Company’s
obligations under the Separation Agreement dated as of                         ,
2009 (the “Agreement”), (c) shall not apply to any of Foley’s rights to
vested benefits such as 401(k),  and (d) shall not serve as a release of any claims that
cannot be released as a matter of law, including, but not limited to,
indemnification as required by law.


 


2.             Release
of Unknown and Unsuspected Claims.  For the purpose of implementing a full and
complete release and discharge of the Releasees, Foley expressly acknowledges
that this General Release is intended to include in its effect, without
limitation, all Claims (as defined above) which Foley does not know or suspect
to exist in his favor at the time of execution hereof, and this General Release
contemplates the extinguishment of any and all such Claims.  In 


 

















 


this regard, Foley expressly waives the
provisions of Section 1542 of the California Civil Code, which state:


 


A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED
HIS SETTLEMENT WITH THE DEBTOR.


 


Furthermore, Foley hereby expressly waives and relinquishes any rights
and benefits he may have under other statutes or common law principles of
similar effect.  Foley understands that
the facts under which he gives this full and complete release and discharge of
the Releasees may hereafter prove to be different than now known or believed by
him and Foley hereby accepts and assumes the risk thereof and agrees that his full
and complete release and discharge of Releasees shall remain effective in all
respects and not be subject to termination, rescission or modification by
reason of any such difference in facts.


 


3.             No Complaint, Charge or Lawsuit
Pending.  Foley
represents that he has not filed with any governmental agency or court any
complaint, charge or lawsuit against any of the Releasees involving any Claims
released herein, and that, except as otherwise permitted by law, he will not do
so at any time hereafter; provided, however, nothing in this General Release shall
limit Foley from filing an action for the purpose of enforcing his rights under
the Agreement or from filing a charge or complaint of discrimination with the
EEOC.


 


4.             Severability.  The provisions of
this General Release are severable, and if any part of this General Release is
found unenforceable, invalid or illegal, the other parts of this General
Release shall remain fully valid and enforceable.


 


5.             Governing Law.  This General Release
and any dispute concerning the validity, interpretation or breach of any term
or condition hereof shall be construed and interpreted under and in conformance
with the laws of the State of California applicable to contracts negotiated and
to be fully performed in the State of California.


 


6.             Arbitration.  Any dispute
concerning the validity, interpretation or breach of this General Release or
any term or condition hereof or any dispute concerning the Claims released
herein shall be resolved exclusively by final and binding arbitration as
provided in Section 11(b) of the Agreement.  Judgment upon any such arbitration award may
be entered by any state or federal court of competent jurisdiction.  This General Release shall be admissible in
any proceeding to enforce its terms.


 


7.             Construction.  Foley has had ample
opportunity to make suggestions or changes to the terms and language of this
General Release and agrees that principles of contract construction against the
drafter shall have no application hereto. 
Foley agrees that this General Release should be construed fairly and
not in favor of or against Foley or the Company as the drafter.


 


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8.             Waiting Period and Right of
Revocation.  Foley understands
that this General Release releases any and all Claims for age discrimination,
whether under state or federal law.  Foley
understands that pursuant to federal law, Foley has the right to review this
General Release for 45 days before executing the same, and that Foley has the
right to revoke this General Release in its entirety at any time within seven
days after executing the same and that this General Release will not be
effective until such seven day revocation period has expired.  Foley acknowledges his right to consult with an
attorney prior to signing this General Release, and that he has been advised to
consult with an attorney prior to such signing.


 


9.             Full Understanding of Terms.  Foley represents and
agrees that he fully understands his right to discuss all aspects of this
General Release with his private attorney; that to the extent, if any, he desires,
he has availed himself of this right; that he has carefully read and fully
understands all of the provisions of this General Release; and that he is
voluntarily entering into it.


 


Dated: 
May       , 2009


 


	
   

  	
  THOMAS J. FOLEY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


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