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Exhibit 10.22
QUIDEL CORPORATION
GENERAL NONSTATUTORY STOCK OPTION PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "AGREEMENT") is made effective as of
June 23, 1997 (the "GRANT DATE"), by and between QUIDEL CORPORATION, a Delaware
corporation (the "COMPANY"), and XXXXX xx XXXXX ("OPTIONEE"), with reference to
the following facts:
A. The Board of Directors of the Company (the "BOARD") has
established, by written resolutions, the General Nonstatutory Stock Option Plan
(the "PLAN"), and has granted authority to the Compensation Committee of the
Board (the "COMMITTEE") to make grants under and to administer the Plan.
B. By action taken on the Grant Date, the Committee granted to
Optionee a nonstatutory stock option (the "OPTION") to purchase shares of the
common stock of the Company (the "COMMON STOCK") on the terms and conditions
set forth herein. This Agreement is intended to memorialize the terms and
conditions upon which the Committee granted the Option to Optionee.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
AGREEMENT
1. GRANT OF OPTION. Optionee may, at Optionee's election and
upon the terms and conditions set forth herein, purchase all or any part of an
aggregate of 300,000 shares of Common Stock (the "OPTIONED SHARES") at the
price per share equal to $3.71875 (the "OPTION PRICE"). The Option Price
equals the closing price of the Common Stock on the trading day immediately
preceding the Grant Date.
2. VESTING SCHEDULE.
(A) 100,000 SHARES. The Option shall vest and become
exercisable cumulatively as to 100,000 of the Optioned Shares at the rate of
6.25% (i.e., 6,250 shares) for each full calendar quarter following the Grant
Date. The first such vesting date shall be September 23, 1997.
(B) 200,000 SHARES. Unless accelerated as provided below
in this subsection (b), the Option shall vest and become exercisable as to the
remaining 200,000 Optioned Shares on June 23, 2002. In the event that the
simple average of the closing prices for the Common Stock, as quoted on any
established stock exchange or a national market system (including, without
limitation, the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System), equals or exceeds one or more prices per share
identified below (each a "PRICING MILESTONE") during a rolling 90-calendar day
period, separate (and not cumulative) increments of the remaining 200,000
Optioned Shares shall automatically vest and become exercisable, as follows:
Increment of
Common Stock Optioned Shares
Pricing Milestone that Vest
----------------- ---------
$ 7.50 20,000
10.00 40,000
12.50 60,000
15.00 80,000
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Exhibit 10.22
3. EXERCISE OF OPTION.
(A) EXTENT OF EXERCISE. The Option may be exercised at
the time or after installments vest as specified in Section 2 with respect to
all or part of the Optioned Shares covered by such vested installments, subject
to the further restrictions contained in this Agreement. In the event that
Optionee exercises the Option for less than the full number of Optioned Shares
included within a vested installment, Optionee shall be entitled to exercise
the Option (in one or more subsequent increments) for the balance of the
Optioned Shares included in said vested installment; provided, however, that in
no event shall Optionee be entitled to exercise the Option for fractional
shares of Common Stock or for a number of shares exceeding the maximum number
of Optioned Shares.
(B) PROCEDURE. The Option shall be deemed to be
exercised when the Secretary of the Company receives written notice of exercise
from or on behalf of Optionee, together with payment of the Option Price and
any amounts required under Section 3(c). The Option Price shall be payable
upon exercise in (i) legal tender of the United States; (ii) capital stock of
the Company delivered in transfer to the Company by or on behalf of Optionee,
duly endorsed in blank or accompanied by stock powers duly endorsed in blank,
with signatures guaranteed in accordance with the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), if required by the Company (valued at
fair market value as of the exercise date); (iii) Common Stock retained by the
Company from the Common Stock otherwise issuable upon exercise or surrender of
the Option being exercised (valued at fair market value as of the exercise
date); or (iv) such other consideration as the Company may deem acceptable in
any particular instance; provided, however, that the Company may, in its
discretion, (x) allow exercise of the Option in a broker-assisted or similar
transaction in which the Option Price is not received by the Company until
promptly after exercise, and/or (y) loan the Option Price to Optionee, if the
exercise will be followed by a prompt sale of some or all of the Optioned
Shares and a portion of the sales proceeds is dedicated to full payment of the
Option Price and amounts required pursuant to Section 3(c).
(C) WITHHOLDING TAXES. Whenever shares of Common Stock
are to be issued upon exercise of the Option, the Company shall have the right
to require Optionee to remit to the Company an amount sufficient to satisfy any
federal, state and local withholding tax requirements prior to such issuance.
The Company may, in its discretion, allow satisfaction of tax withholding
requirements by accepting delivery of Common Stock or by withholding a portion
of the Common Stock otherwise issuable upon exercise of an option.
4. TERM OF OPTION AND EFFECT OF TERMINATION. No portion of the
Option shall vest after termination of Optionee's employment, regardless of the
reason for such termination. In the event that Optionee shall cease to be an
employee of the Company, the Option shall be exercisable, to the extent already
exercisable at the date Optionee ceases to be an employee and regardless of the
reason Optionee ceases to be an employee, for a period of 365 days after that
date, and shall then expire and terminate. In the event of the death of
Optionee while he is an employee of the Company or within the period after
termination of such status during which he is permitted to exercise the Option,
the Option may be exercised by any person or persons designated by Optionee on
a beneficiary designation form adopted by the administrator for such purpose
or, if there is no effective beneficiary designation form on file with the
Company, by the executors or administrators of Optionee's estate or by any
person or persons who shall have acquired the Option directly from Optionee by
his will or the applicable laws of descent and distribution. Unless earlier
terminated as provided in this Section, the Option shall automatically expire
and terminate, and thereby become unexercisable, on the tenth (10th)
anniversary of the Grant Date.
5. ANTI-DILUTION ADJUSTMENTS. If the outstanding shares of
Common Stock of the Company are increased, decreased, changed into or exchanged
for a different number or kind of shares of the Company through reorganization,
recapitalization, reclassification, stock dividend, stock split or reverse
stock split, upon authorization of the Board or the Committee an appropriate
and proportionate adjustment shall be made in the number or kind of Optioned
Shares, the Option Price, and the Pricing Milestones; provided, however, that
no such adjustment need be made if, upon the advice of counsel, the Board or
the Committee determines that such adjustment may result in the receipt of
federally taxable income to Optionee, to holders of other derivative securities
of the Company or holders of Common Stock or other classes of the Company's
securities.
6. CHANGE IN CONTROL. If a Change in Control (as defined below)
of the Company occurs, then notwithstanding the vesting provisions of Section 2
or anything else herein to the contrary, all Optioned Shares shall
automatically vest and become exercisable immediately prior to such Change in
Control, if Optionee is an employee of the Company at that time. For purposes
of this Agreement, a "CHANGE IN CONTROL" means the following and shall be
deemed to occur if any of the following events occurs:
(a) Any person, entity or group, within the meaning of
Section 13(d) or 14(d) of the Exchange Act, but excluding the Company and its
subsidiaries and any employee benefit or stock ownership plan of the Company or
its subsidiaries
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Exhibit 10.22
and also excluding an underwriter or underwriting syndicate that has acquired
the Company's securities solely in connection with a public offering thereof
(such person, entity or group being referred to herein as a "PERSON"), becomes
the beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either the then outstanding shares of Common
Stock or the combined voting power of the Company's then outstanding securities
entitled to vote generally in the election of directors; or
(b) Individuals who, as of the Effective Date, constitute
the Board (the "INCUMBENT BOARD") cease for any reason to constitute at least a
majority of the Board, provided that any individual who becomes a director
after the Effective Date whose election, or nomination for election by the
Company's stockholders, is approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered to be a
member of the Incumbent Board unless that individual was nominated or elected
by any Person having the power to exercise, through beneficial ownership,
voting agreement and/or proxy, 20% 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, in which case that individual shall not be considered to be a member
of the Incumbent Board unless such individual's election or nomination for
election by the Company's stockholders is approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board; or
(c) Consummation by the Company of the sale or other
disposition by the Company of all or substantially all of the Company's assets
or a reorganization or merger or consolidation of the Company with any other
person, entity or corporation, other than
(i) a reorganization or merger or consolidation
that would result in the voting securities of the Company outstanding
immediately prior thereto (or, in the case of a reorganization or
merger or consolidation that is preceded or accomplished by an
acquisition or series of related acquisitions by any Person, by tender
or exchange offer or otherwise, of voting securities representing 5%
or more of the combined voting power of all securities of the Company,
immediately prior to such acquisition or the first acquisition in such
series of acquisitions) continuing to represent, either by remaining
outstanding or by being converted into voting securities of another
entity, more than 50% of the combined voting power of the voting
securities of the Company or such other entity outstanding immediately
after such reorganization or merger or consolidation (or series of
related transactions involving such a reorganization or merger or
consolidation), or
(ii) a reorganization or merger or consolidation
effected to implement a recapitalization or reincorporation of the
Company (or similar transaction) that does not result in a material
change in beneficial ownership of the voting securities of the Company
or its successor; or
(d) Approval by the stockholders of the Company or an
order by a court of competent jurisdiction of a plan of liquidation of the
Company.
7. DELIVERY OF CERTIFICATES. As soon as practicable after any
proper exercise of the Option in accordance with the provisions of this
Agreement, the Company shall deliver to Optionee at the main office of the
Company, or such other place as shall be mutually acceptable, a certificate or
certificates representing such shares of Common Stock to which Optionee is
entitled upon exercise of the Option.
8. NO RIGHTS IN SHARES BEFORE ISSUANCE AND DELIVERY. Neither
Optionee, his estate nor his transferees by will or the laws of descent and
distribution shall be, or have any rights or privileges of, a stockholder of
the Company with respect to any shares issuable upon exercise of the Option,
unless and until certificates representing such shares shall have been issued
and delivered. No adjustment will be made for a dividend or their rights where
the record date is prior to the date such stock certificates are issued.
9. NONASSIGNABILITY. The Option is not assignable or
transferable by Optionee except by will, by the laws of descent and
distribution, pursuant to a qualified domestic relations order, or, in the
discretion of the Company and under circumstances that would not adversely
affect the interests of the Company, pursuant to a nominal transfer that does
not result in a change in beneficial ownership, or as otherwise permitted by
rule or interpretation of the Securities and Exchange Commission or its staff
as an exception to the general proscription on transfer of derivative
securities set forth in Rule 16b-3 (or any successor rule) under the Exchange
Act or interpretation thereof. During the lifetime of Optionee, the Option
shall be exercisable only by Optionee (or Optionee's permitted transferee) or
his guardian or legal representative.
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Exhibit 10.22
10. CERTAIN REPRESENTATIONS AND WARRANTIES. Optionee expressly
acknowledges, represents and agrees as follows:
(a) Optionee shall accept as binding, conclusive and
final all decisions or interpretations of the Board or the Committee upon any
questions arising under the Plan or this Agreement;
(b) If Optionee uses Common Stock of the Company to pay
the Option Price, Optionee has been advised to consult with a competent tax
advisor regarding the applicable tax consequences prior to utilizing such
Common Stock to exercise the Option; and
(c) If Optionee is (as expected) a person subject to the
provisions of Section 16 of the Securities Exchange Act of 1934, Optionee has
been advised to consult with a competent federal securities law advisor as to
the reporting obligations and potential liability for profits under said
Section 16 with respect to the granting and exercise of the Option.
11. NO EMPLOYMENT RIGHTS OR OBLIGATIONS. Nothing in the Plan or
in this Agreement shall be construed to create or imply any contract of
employment between the Company and Optionee. Nothing in the Plan or in this
Agreement shall confer upon Optionee any right to continue in the employ of the
Company or confer upon the Company any right to require continued employment by
Optionee. Optionee acknowledges and agrees that the employment of Optionee by
the Company is expressly at the will of the Company, and the Company may
terminate Optionee's employment by the Company at any time for any reason or
for no reason. Similarly, Optionee may terminate his employment with the
Company at any time for any reason or for no reason. Any questions as to
whether and when there has been a termination of Optionee's employment, the
reason (if any) for such termination, and/or the consequences thereof under the
terms of the Plan, shall be determined by the Board in its sole discretion, and
the Board's determination thereof shall be final, binding and conclusive.
12. GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the internal
laws, and not the laws pertaining to conflicts or choice or laws, of the State
of California applicable to agreements made and to be performed wholly within
the State of California.
13. AGREEMENT BINDING ON SUCCESSORS. The terms of this Agreement
shall be binding upon the executors, administrators, heirs, successors,
transferees and assigns of Optionee.
14. NECESSARY ACTS. Optionee agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities and/or tax
laws.
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement effective as of the Grant Date.
QUIDEL CORPORATION, a Delaware corporation
By: /S/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Chief Executive Officer
/S/ XXXXX xx XXXXX
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XXXXX xx XXXXX
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