Exhibit
10.4


 


AGREEMENT RE: CHANGE IN CONTROL


 


This AGREEMENT RE: CHANGE IN CONTROL (this “Agreement”) is dated as of January 16,
2009 and is entered into by and between Douglas C. Bryant (“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 Executive’s commencement of employment with the Company 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


 


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(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 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. 


 


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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 


 


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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 Internal Revenue Code of 1986, as amended (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 


 


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(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 Code), 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 or legal 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.


 


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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 


 


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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. In the event of any controversy, dispute or
claim arising out of or related to this Agreement or Bryant’s employment by the
Company, the parties shall negotiate in good faith in an attempt to reach a
mutually acceptable settlement of such dispute. 
If negotiations in good faith do not result in a settlement of any such
controversy, dispute or claim, it shall be resolved
exclusively by final and binding arbitration, before a single arbitrator, to be
held in the County of San Diego, California, in accordance with the then
existing rules of the JAMS.  The
parties may obtain discovery in aid of the arbitration to the fullest extent
permitted under law, including California Code of Civil Procedure Section 1283.05.  All discovery disputes shall be resolved by
the arbitrator.  Judgment
upon any such arbitration award may be entered by any state or federal court of
competent jurisdiction.


 


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

  	
   

  	
  Douglas
  C. Bryant

  
	
  10165 McKellar Court

  	
   

  	
  424
  Brandon Way

  
	
  San Diego, CA 92121

  	
   

  	
  Austin,
  Texas 78733

  
	
  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 


 


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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, a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark A. Pulido

  
	
   

  	
   

  	
  Printed
  Name:  Mark A. Pulido

  
	
   

  	
   

  	
  Title:

  	
  Chairman of the Board of
  Directors,

  
	
   

  	
   

  	
   

  	
  Quidel Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Douglas
  C. Bryant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas C. Bryant

  
	
   

  	
   

  	
   Douglas C. Bryant

  



 


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