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Exhibit 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into
as of June 9, 1998 (the "EFFECTIVE DATE"), by and between QUIDEL CORPORATION, a
Delaware corporation (the "COMPANY"), and XXXXX xx XXXXX, an individual ("DE
BRUIN").
1. EMPLOYMENT. The Company hereby engages de Bruin as its President
and Chief Executive Officer and de Bruin accepts such employment upon the terms
and subject to the conditions set forth in this Agreement.
2. DUTIES AND RESPONSIBILITIES. de Bruin will report directly to the
Board of Directors (the "Board"). de Bruin shall perform such duties and
functions consistent with his role as President and Chief Executive Officer as
may from time to time be assigned to him by the Board. de Bruin 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. de Bruin shall not, without
the prior written approval of the Board, 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 de Bruin of his
duties and obligations hereunder; provided, however, that de Bruin may serve on
the boards of directors of up to three for-profit corporations and such
non-profit organizations as he determines; so long as such commitments do not
unreasonably interfere with de Bruin's duties and responsibilities to the
Company and the Board of Directors does not object to de Bruin's 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 de Bruin
under this Agreement, the Company agrees to pay de Bruin, beginning July 6,
1998, a salary (the "Base Salary") equal to Three Hundred Seventy Thousand
Dollars ($370,000) 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 de Bruin's 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 de
Bruin's prior written consent) de Bruin's Base Salary. From June 9, 1998 to July
6, 1998 de Bruin's compensation will continue and be paid as per de Bruin's
Employment Agreement dated June 23, 1997, as amended by Amendment No. 1 dated as
of March 3, 1998.
(b) STOCK OPTIONS. Pursuant to duly adopted Resolutions of
the Board of June 9, 1998, the Company approved the 1998 Stock Incentive Plan,
subject to shareholder approval at the next Annual Meeting of the Stockholders,
and granted to de Bruin incentive and nonstatutory stock options under the 1998
Stock Incentive Plan, if approved, to purchase up to
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Exhibit 10.23
1,428,420 shares of the Company's Common Stock, under the terms and conditions
set forth in that certain Stock Option Agreement executed by the Company and de
Bruin concurrently with this Agreement, a copy of which is attached hereto as
Exhibit A. Upon Shareholder approval of the 1998 Stock Incentive Plan, de Bruin
and the Board agreed to terminate all of de Bruin's existing stock options,
whether vested or not, granted pursuant to the terms of that certain Stock
Option Agreement dated as of June 23, 1997.
(c) BENEFITS.
During the Term of de Bruin's employment hereunder:
(1) de Bruin shall be entitled to four (4) weeks
annual vacation leave consistent with the Company's policies for
other senior executives of the Company.
(2) The Company shall pay or reimburse de Bruin
for all reasonable and necessary travel and other business expenses
incurred or paid by de Bruin 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, de Bruin 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 de Bruin and de
Bruin's dependents consistent with the coverage generally made
available by the Company to senior executives of the Company.
(4) Provided that de Bruin meets the insurability
requirements of a reputable national life insurance company for a man
of his age in good health and is otherwise eligible for term life
insurance, the Company agrees (while de Bruin is employed by the
Company) to purchase and pay the commercially reasonable premiums for
term life insurance in a policy amount of $1,000,000 on the life of
de Bruin, payable to the estate of de Bruin, his heirs and assigns.
Such policy will be transferred to de Bruin upon the termination of
his employment.
(5) In addition to the benefits set forth above,
de Bruin 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: Promptly after the Effective Date de Bruin will list
his Boulder, Colorado home at a price no greater than the value determined by a
qualified independent appraisal as approved by the Board. In the event that the
actual sale price is less than the listing price, the Company will reimburse de
Bruin for the difference, up to a maximum of $100,000. Additionally, the Company
will (from July 6, 1998 to the earlier of July 6, 2000 or sale of de
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Exhibit 10.23
Bruin's Boulder residence) reimburse de Bruin for all mortgage interest,
property taxes, reasonable property maintenance costs and reasonable selling and
closing costs associated with de Bruin's Boulder residence. The Company shall
also reimburse de Bruin for all reasonable relocation, up to six (6) months
temporary living and moving costs from Boulder 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 de Bruin, the Company will pay to de Bruin an
additional amount in cash (the "Gross-Up Payment") equal to the sum of (i) the
federal, state and local taxes payable by de Bruin 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 de Bruin as a result of
receipt of the Gross-Up Payment. de Bruin must submit customary and reasonable
documentation, including proof of payment, for any and all such reimbursements.
5. BRIDGE LOAN: The Company will provide an unsecured loan of up to a
maximum of $400,000 (principal amount) to enable de Bruin to purchase a
residence in San Diego. Interest shall accrue at 5% per annum (or, if greater,
the minimum amount required to avoid imputed interest income). All principal and
interest shall be immediately due and payable on the earlier of sale of de
Bruin's Boulder residence or July 6, 2000. Such loan will be unsecured unless
security is necessary to assure the deductibility of such interest as mortgage
interest, in which event any security granted by de Bruin to the Company would
be subordinated to the principal mortgage lender on de Bruin's San Diego
residence.
6. AT WILL EMPLOYMENT. The Company and de Bruin acknowledge and agree
that de Bruin's employment by the Company is expressly "at will" and not for a
specified term. This means that either party may terminate de Bruin's employment
at any time, with or without cause. Any termination of de Bruin's employment is,
however, subject to the terms and provisions of this Agreement.
7. INVENTIONS.
(a) DISCLOSURE. de Bruin will disclose promptly to the
Company each Invention (as defined below), whether or not reduced to practice,
that is conceived or learned by de Bruin (either alone or jointly with others)
during the term of his employment by the Company. Further, de Bruin will
disclose in confidence to the Company all patent applications filed by or on
behalf of de Bruin 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 de Bruin (alone or in conjunction with
others) during the duration of de Bruin's employment and for a period of one (1)
year thereafter, and which:
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Exhibit 10.23
(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 de Bruin 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. de Bruin 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. de Bruin hereby assigns all of his right, title
and interest in any such Inventions to the Company.
(c) EXCLUSION NOTICE. The assignment by de Bruin 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, de Bruin 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 de Bruin's 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 de Bruin 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. de Bruin
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, de Bruin
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
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Exhibit 10.23
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. de
Bruin's 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 de Bruin at a
reasonable rate after such termination for the time actually spent by de Bruin
at the Company's request on such assistance. de Bruin hereby irrevocably
appoints the Company, and its duly authorized officers and agents, as de Bruin's
agent and attorney-in-fact to act for and on behalf of de Bruin 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, de Bruin 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 de Bruin 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 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
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 de Bruin's breach of any
obligation of confidentiality owed to the Company; (ii) was known to de Bruin
prior to his original employment by the Company; (iii) becomes known to de Bruin
from a source other than the Company (which is not breaching an obligation to
the Company) and which de Bruin 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 de Bruin's employment for any reason whatsoever, de Bruin will
promptly deliver to the Company all documents, data, and other information
pertaining to Inventions and Confidential Information. de Bruin 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. de Bruin 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 de Bruin 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.
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Exhibit 10.23
11. REMEDIES UPON BREACH. In the event of any breach by de Bruin 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 de Bruin from violating such terms of this
Agreement, to enforce the specific performance by de Bruin 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
00000 XxXxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
To de Bruin: XXXXX xx XXXXX
00 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
14. ASSIGNMENT. This Agreement may not be assigned by de Bruin. 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 de Bruin and the Company, including but not limited to
that certain Employment Agreement dated as of June 23, 1997 and that certain
Stock Option Agreement dated as of June 23, 1997, and contains the entire
understanding of the parties hereto with respect to the terms and conditions of
de Bruin's 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.
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Exhibit 10.23
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/ XXXXXXX X.X. XXXXXX
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Chairman of the Board
/S/ XXXXX xx XXXXX
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XXXXX xx XXXXX
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Exhibit 10.23
EXHIBIT A
Stock Option Agreement
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