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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into
as of December 14, 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 Senior Vice
President Corporate Operations, Chief Financial Officer and Secretary 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 initially be responsible
for the following functional areas and departments, each of which will report
directly to him: Finance, Accounting and Administration; Investor Relations;
Information Systems, Human Resources and Facilities Management. 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 December 14, 1998,
a salary (the "Base Salary") equal to Two Hundred Twenty Five Thousand Dollars
($200,000) 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.
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(1) In addition to ▇▇▇▇▇▇▇'▇ salary, the Company
agrees to pay ▇▇▇▇▇▇▇ a sign-on bonus of $20,000 in cash payable to
the order of ▇▇▇▇▇▇▇ on his first day of employment by the Company.
(2) ▇▇▇▇▇▇▇ is eligible to receive a cash 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 225,000 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.
(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. 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
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or without cause. Any termination of ▇▇▇▇▇▇▇'▇ employment is, however, subject
to the terms and provisions of this Agreement.
5. 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 Labor Code.
Accordingly, ▇▇▇▇▇▇▇ is not required to assign an idea or invention for which
all of the following are applicable:
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(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 Labor 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.
6. 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
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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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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:
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To the Company: QUIDEL CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
To ▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ASSIGNMENT. This Agreement may not be assigned by ▇▇▇▇▇▇▇.
This Agreement will be binding upon the Company's successors and
assigns.
13. 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.
14. 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:
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for the Compensation Committee
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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