EXHIBIT 10.5


 


Amendment of Agreement Re: Change in Control


 


This Amendment (the “Amendment”) is entered into as of December 31,
2007, by and between Caren L. Mason, an individual (“Executive”), and Quidel Corporation, a Delaware corporation (“Quidel”) in connection with that certain
Agreement Re: Change in Control (the “CIC
Agreement”), entered into as of August 20,
2004, by and between Executive and Quidel. 
Terms which are not otherwise defined in this Amendment shall have the
same meanings accorded to them in the CIC Agreement.


 


Background


 


WHEREAS, the
IRS issued final regulations on April 10, 2007 interpreting the rules and
standards under Section 409A of the Internal Revenue Code (“Section 409A”) as it relates to
deferred pay arrangements; and


 


WHEREAS, Section 409A
impacts the CIC Agreement, and Executive and Quidel desire to bring the CIC
Agreement into documentary compliance with Section 409A based on the terms
and conditions herein.


 


Agreement


 


NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration the receipt of which is hereby acknowledged, Executive and Quidel
hereby agree as follows:


 


1.             Update
of Section 5(a).  The
parties agree that Section 5(a) should be deleted in its entirety and
replaced with the following:


 


“(a)         Executive voluntarily terminates her
employment with the Company and its affiliated companies.  Executive,
however, shall not be considered to have voluntarily terminated her
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 her 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 her 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.”


 


2.             Update
of Section 6(b).  The
parties agree that Section 6(b) should be deleted in its entirety and
replaced with the following:


 


“(b)         [Intentionally
Deleted.]”


 


3.             New
Section 6(d).  The parties agree that a new Section 6(d) shall
be added to the CIC Agreement immediately following Section 6(c):


 


“(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.”


 


4.             Miscellaneous.  This Amendment may be executed in
counterparts, including counterparts transmitted by facsimile, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.  No other changes or
modifications are made to the CIC Agreement by this Amendment, and all other
terms and conditions in the CIC Agreement remain in full force and effect as
set forth therein.


 


[Signature Page Follows]


 


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IN WITNESS
WHEREOF, each of the parties hereto has executed this Amendment as of the date
first written above.


 


	
   

  	
  Caren L. Mason

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caren L. Mason

  
	
   

  	
  Name:

  	
  Caren L. Mason

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Quidel Corporation,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Bujarski

  
	
   

  	
  Name:

  	
  Robert J. Bujarski

  
	
   

  	
  Title:

  	
  Senior Vice President, General and

  Corporate Secretary

  



 


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