EXHIBIT 10.26
CONFIDENTIAL DISCUSSION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into as of
September 1, 1998 (the "EFFECTIVE DATE"), by and between QUIDEL CORPORATION,
a Delaware corporation (the "COMPANY"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual
("▇▇▇▇▇▇").
1. EMPLOYMENT. The Company hereby engages ▇▇▇▇▇▇ as its Vice
President, Technology and Business Development and Chief Medical Officer and
▇▇▇▇▇▇ accepts such employment upon the terms and subject to the conditions
set forth in this Agreement.
2. DUTIES AND RESPONSIBILITIES. ▇▇▇▇▇▇ will report directly to the
President and Chief Executive Officer. ▇▇▇▇▇▇ shall be responsible for
identifying, assessing and negotiating external new business, technology and
product opportunities. ▇▇▇▇▇▇ will serve as the Company's Chief Medical
Officer. In addition, ▇▇▇▇▇▇ shall perform such other duties and functions
consistent with his role as may from time to time be assigned to him by the
President and Chief Executive Officer. ▇▇▇▇▇▇ agrees that during the course
of the Company's business hours throughout the term of this Agreement, he
will devote the whole of his time, attention and efforts to the performance
of his duties and obligations hereunder. ▇▇▇▇▇▇ shall not, without the prior
written approval of the President and Chief Executive Officer, and obtained
in each instance, directly or indirectly (i) accept employment or receive any
compensation for the performance of services from any business enterprise
other than the Company or (ii) enter into or be concerned or interested in
any trade or business or public or private work (whether for profit or
otherwise and whether as partner, principal, shareholder or otherwise), which
may, in the reasonable discretion of the Board, hinder or otherwise interfere
with the performance by ▇▇▇▇▇▇ of his duties and obligations hereunder;
PROVIDED, HOWEVER, that ▇▇▇▇▇▇ may serve on the board of directors of one
for-profit corporation and one non-profit organization of his choice; so long
as such commitments do not unreasonably interfere with ▇▇▇▇▇▇'▇ duties and
responsibilities to the Company and the Board of Directors does not object to
▇▇▇▇▇▇'▇ directorship based upon reasonable concerns relating to the nature
of the company in question or its business.
3. COMPENSATION.
(a) SALARY. For all services to be rendered by ▇▇▇▇▇▇ under this
Agreement, the Company agrees to pay ▇▇▇▇▇▇, beginning September 1, 1998, a
salary (the "BASE SALARY") equal to Two Hundred and Fifteen Thousand Dollars
($215,000) per year, payable in the Company's normal payroll cycle, less all
amounts required by law to be withheld or deducted. The Compensation
Committee of the Board of Directors shall review ▇▇▇▇▇▇'▇ Base Salary on
about April 1, 1999 and yearly thereafter. The Compensation Committee, in
its sole and absolute discretion from time to time, may increase (but not
decrease without ▇▇▇▇▇▇'▇ prior written consent) ▇▇▇▇▇▇'▇ Base Salary.
(1) In addition to ▇▇▇▇▇▇'▇ salary, the Company agrees to pay
▇▇▇▇▇▇ a one-time sign-up bonus of $25,000 in cash payable to the order of
▇▇▇▇▇▇, on his first day of employment by the Company.
(2) ▇▇▇▇▇▇ is eligible to receive a cash performance bonus, to
be paid each year at the same time bonuses are generally paid to other
senior executives of the Company for the relevant fiscal year of up to 30%
of ▇▇▇▇▇▇'▇ Base Salary, as determined by the
Compensation Committee of the Board of Directors. Calculation and
payment of the bonus is subject to achievement of the goals set from
year to year by the Compensation Committee for the relevant fiscal year.
(b) STOCK OPTIONS. The Compensation Committee of the Board of Directors
of the Company granted ▇▇▇▇▇▇ Incentive and Nonqualified Stock Options to
purchase up to 200,000 shares of Common Stock of the Company under the terms and
conditions set forth in that certain Stock Option Agreement executed by the
Company and ▇▇▇▇▇▇ concurrently with this Agreement, a copy of which is attached
hereto as EXHIBIT A.
(c) BENEFITS.
During the Term of ▇▇▇▇▇▇'▇ employment hereunder:
(1) ▇▇▇▇▇▇ shall be entitled to four weeks annual vacation leave
consistent with the Company's policies for other senior executives of the
Company.
(2) The Company shall pay or reimburse ▇▇▇▇▇▇ for all reasonable and
necessary travel and other business expenses incurred or paid by ▇▇▇▇▇▇ in
connection with the performance of his services under this Agreement
consistent with the Company's policies for other senior executives of the
Company as approved by the Compensation Committee. Additionally, ▇▇▇▇▇▇
shall be entitled to receive an annual $2,500 tax consulting and
preparation allowance.
(3) Commencing on the date of this Agreement, the Company shall
provide and pay for the annual cost of premiums for health, dental and
medical insurance coverage for ▇▇▇▇▇▇ and ▇▇▇▇▇▇'▇ dependents consistent
with the coverage generally made available by the Company to senior
executives of the Company.
(4) In addition to the benefits set forth above, ▇▇▇▇▇▇ shall be
entitled to participate in any other policies, programs and benefits which
the Compensation Committee may, in its sole and absolute discretion, make
generally available to its other senior executives from time to time
including, but not limited to, life insurance, disability insurance,
pension and retirement plans, stock plans, cash and/or other bonus
programs, and other similar programs.
4. RELOCATION: Upon ▇▇▇▇▇▇'▇ physical relocation to San Diego and for
a period of six months, the Company will reimburse ▇▇▇▇▇▇ for all mortgage
interest, property taxes, reasonable property maintenance costs and
reasonable selling and closing costs associated with relocation, up to six
months temporary living and moving costs from San Francisco to San Diego
including reasonable costs associated with the purchase of a new home in San
Diego (such as allocable closing costs and up to one "point" in up-front
financing costs, but excluding real estate broker commissions and fees). To
the extent that any of the foregoing is taxable income to ▇▇▇▇▇▇, the Company
will pay to ▇▇▇▇▇▇ an additional amount in cash (the "GROSS-UP PAYMENT")
equal to the sum of (i) the federal, state and local taxes payable by ▇▇▇▇▇▇
as a result of the benefits set forth in this Section 4, plus (ii) all
Attributable Taxes. For purposes hereof, "ATTRIBUTABLE TAXES" means all
taxes payable by ▇▇▇▇▇▇ as a result of receipt of the Gross-Up Payment.
▇▇▇▇▇▇ must submit customary and reasonable documentation, including proof of
payment, for any and all such reimbursements.
5. AT WILL EMPLOYMENT. The Company and ▇▇▇▇▇▇ acknowledge and agree that
▇▇▇▇▇▇'▇ employment by the Company is expressly "at will" and not for a
specified term. This means that either party may terminate ▇▇▇▇▇▇'▇ employment
at any time, with or without cause. Any
termination of ▇▇▇▇▇▇'▇ employment is, however, subject to the terms and
provisions of this Agreement.
6. INVENTIONS.
(a) DISCLOSURE. ▇▇▇▇▇▇ will disclose promptly to the Company each
Invention (as defined below), whether or not reduced to practice, that is
conceived or learned by ▇▇▇▇▇▇ (either alone or jointly with others) during
the term of his employment by the Company. Further, ▇▇▇▇▇▇ will disclose in
confidence to the Company all patent applications filed by or on behalf of
▇▇▇▇▇▇ during the term of his employment and for a period of one (1) year
thereafter.
For purposes of this Agreement, the term "Invention" includes,
without limitation, any invention, discovery, know-how, idea, trade secret,
technique, formula, machine, method, process, use, apparatus, product,
device, composition, code, design, program, confidential information,
proprietary information, or configuration of any kind, that is discovered,
conceived, developed, made or produced by ▇▇▇▇▇▇ (alone or in conjunction
with others) during the duration of ▇▇▇▇▇▇'▇ employment and for a period of
one (1) year thereafter, and which:
(1) relates at the time of conception or reduction to practice
of the invention, in any manner, to the business of the Company, including
actual or demonstrably anticipated research or development;
(2) results from or is suggested by work performed by ▇▇▇▇▇▇ for
or on behalf of the Company; or
(3) results from the use of equipment, supplies, facilities,
information, time or resources of the Company.
The term Invention will also include any improvements to an Invention, and
will not be limited to the definition of patentable or copyrightable
invention as contained in the United States patent or copyright laws.
(b) COMPANY PROPERTY; ASSIGNMENT. ▇▇▇▇▇▇ acknowledges and agrees
that all Inventions will be the sole property of the Company, including,
without limitation, all domestic and foreign patent rights, rights of
registration or other protection under the copyright laws, or other rights,
pertaining to the Inventions. ▇▇▇▇▇▇ hereby assigns all of his right, title
and interest in any such Inventions to the Company.
(c) EXCLUSION NOTICE. The assignment by ▇▇▇▇▇▇ of Inventions under
this Agreement does not apply to any Inventions that are expressly excluded
from coverage pursuant to Section 2870 of the California Laboratory or Code.
Accordingly, ▇▇▇▇▇▇ is not required to assign an idea or invention for which
ALL of the following are applicable:
(1) No equipment, supplies, facility or trade secret information
of the Company was used and the invention or idea was developed entirely on
▇▇▇▇▇▇'▇ own time;
(2) The invention or idea does not relate to the business of the
Company;
(3) The invention or idea does not relate to the Company's
actual or demonstrably anticipated research or development; and
(4) The invention or idea does not result from any work
performed by ▇▇▇▇▇▇ for the Company.
As used in this SECTION 7(C), "INVENTION" will have the same meaning as
"invention" as used in Section 2870 of the California Laboratory or Code.
(d) PATENTS AND COPYRIGHTS; ATTORNEY-IN-FACT. ▇▇▇▇▇▇ agrees to
assist the Company (at the Company's expense) in any way the Company deems
necessary or appropriate from time to time to apply for, obtain and enforce
patents on, and to apply for, obtain and enforce copyright protection and
registration of, Inventions in any and all countries. To that end, ▇▇▇▇▇▇
will (at the Company's expense), without limitation, testify in any suit or
other proceeding involving any Invention, execute all documents that the
Company reasonably determines to be necessary or convenient for use in
applying for and obtaining patents or copyright protection and registration
thereon and enforcing same, and execute all necessary assignments thereof to
the Company or parties designated by it. ▇▇▇▇▇▇'▇ obligations to assist the
Company in obtaining and enforcing patents or copyright protection and
registration for Inventions will continue beyond termination of his
employment, but the Company will compensate ▇▇▇▇▇▇ at a reasonable rate after
such termination for the time actually spent by ▇▇▇▇▇▇ at the Company's
request on such assistance. ▇▇▇▇▇▇ hereby irrevocably appoints the Company,
and its duly authorized officers and agents, as ▇▇▇▇▇▇'▇ agent and
attorney-in-fact to act for and on behalf of ▇▇▇▇▇▇ in filing all patent
applications, applications for copyright protection and registration
amendments, renewals, and all other appropriate documents in any way related
to Inventions.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Except in the
performance of his duties hereunder, ▇▇▇▇▇▇ will not disclose to any person
or entity or use for his own direct or indirect benefit any Confidential
Information (as defined below) pertaining to the Company obtained by ▇▇▇▇▇▇
in the course of his employment with the Company. For purposes of this
Agreement, "CONFIDENTIAL INFORMATION" will include all of the Company's
confidential or proprietary information, including, without limitation, any
information encompassed in all strategic plans, insurance plans, Inventions,
and any trade secrets, reports, investigations, experiments, research or
developmental work, work in progress, drawings, designs, plans, proposals,
codes, marketing and sales programs, financial data and records financial
projections, cost summaries, pricing formula, and all concepts or ideas,
materials or information related to the business, products or sales of the
Company or the Company's customers; PROVIDED, HOWEVER, that Confidential
Information shall not include information, documents or data that (i) is or
subsequently becomes publicly available without ▇▇▇▇▇▇'▇ breach of any
obligation of confidentiality owed to the Company; (ii) was known to ▇▇▇▇▇▇
prior to his original employment by the Company; (iii) becomes known to
▇▇▇▇▇▇ from a source other than the Company (which is not breaching an
obligation to the Company) and which ▇▇▇▇▇▇ learns of outside the scope of
his employment with the Company; or (iv) is required to be disclosed by law
or other governmental authority.
9. RETURN OF MATERIALS AT TERMINATION. In the event of any
termination of ▇▇▇▇▇▇'▇ employment for any reason whatsoever, ▇▇▇▇▇▇ will
promptly deliver to the Company all documents, data, and other information
pertaining to Inventions and Confidential Information. ▇▇▇▇▇▇ will not take
with him any documents or other information, or any reproduction or excerpt
thereof, containing or pertaining to any Inventions or Confidential
Information.
10. NON-SOLICITATION. ▇▇▇▇▇▇ agrees that so long as he is employed by
the Company and for a period of one (1) year after termination of his
employment for any reason, he will not (a) directly or indirectly solicit,
induce or attempt to solicit or induce any Company employee to discontinue
his
or her employment with the Company; (b) usurp any opportunity of the Company
of which ▇▇▇▇▇▇ became aware during his tenure at the Company; or (c)
directly or indirectly solicit or induce or attempt to influence any person
or business that is an account, customer or client of the Company to restrict
or cancel the business of any such account, customer or client with the
Company.
11. REMEDIES UPON BREACH. In the event of any breach by ▇▇▇▇▇▇ of
Section 8 or 9 of this Agreement, the Company will be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to enjoin ▇▇▇▇▇▇ from violating
such terms of this Agreement, to enforce the specific performance by ▇▇▇▇▇▇
of such terms of this Agreement, and to obtain damages, or any of them, but
nothing contained herein will be construed to prevent such remedy or
combination of remedies as the Company may elect to invoke.
12. NO WAIVER. The waiver by either party of a breach of any provision
of this Agreement will not operate as or be construed as a waiver of any
subsequent breach thereof.
13. NOTICES. Any and all notices referred to herein will be
sufficiently furnished if in writing, and sent by registered or certified
mail, postage prepaid, to the respective parties at the following addresses
or such other address as either party may from time to time designate in
writing:
To the Company: QUIDEL CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
To ▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. ASSIGNMENT. This Agreement may not be assigned by ▇▇▇▇▇▇. This
Agreement will be binding upon the Company's successors and assigns.
15. ENTIRE AGREEMENT. This Agreement, together with the Stock Option
Agreement attached hereto as EXHIBIT A, supersedes any and all prior written
or oral agreements between ▇▇▇▇▇▇ and the Company, and contains the entire
understanding of the parties hereto with respect to the terms and conditions
of ▇▇▇▇▇▇'▇ employment with the Company.
16. GOVERNING LAW. This Agreement will be construed and enforced in
accordance with the internal laws and decisions of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, in counterparts, each of which will be deemed an original, as of
the Effective Date.
QUIDEL CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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for the Compensation Committee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
