AMENDMENT #1
TO
EMPLOYMENT AGREEMENT AND OPTION AGREEMENT
THIS AMENDMENT #1 TO EMPLOYMENT AGREEMENT AND OPTION AGREEMENT (this
"Amendment") is made and entered into as of August 13, 2001 (the "Effective
Date") by and between QUIDEL CORPORATION, a Delaware corporation (the
"Company"), and XXXXX XX XXXXX, an individual ("de Bruin").
BACKGROUND
A. The Company and de Bruin previously entered into that certain
Employment Agreement (the "Employment Agreement") and that certain Stock Option
Agreement (the "Option Agreement"), each dated June 9, 1998.
B. The purpose and intent of this Amendment is to amend certain
terms of the Employment Agreement, effective as of the Effective Date hereof, as
a result of changes in de Bruin's title, duties and compensation and in the
context of his continuing employment with the Company.
C. It is further intended by the parties that, as long as de
Bruin continues to be employed by the Company as provided herein, he shall
continue to vest as to the options granted under the Option Agreement and shall
be deemed for all other purposes under the Option Agreement to be actively
employed by the Company.
AGREEMENT
1. EMPLOYMENT. Section 1 of the Employment Agreement is hereby
deleted and replaced with the following:
"THE COMPANY HEREBY ENGAGES AND EMPLOYS DE BRUIN AS ITS
EXECUTIVE CHAIRMAN OF THE BOARD OF DIRECTORS AND DE BRUIN
ACCEPTS SUCH EMPLOYMENT AND POSITION UPON THE TERMS AND
SUBJECT TO THE CONDITIONS SET FORTH HEREIN."
2. DUTIES AND RESPONSIBILITIES. The first three (3) sentences of
Section 2 of the Employment Agreement are hereby deleted and are replaced with
the following, it being the intent of the parties that the fourth (4th) sentence
of such Section 2 shall remain unamended and in full force and effect:
"IN CONNECTION WITH THE PROJECTS AND TASKS TO BE PERFORMED BY
DE BRUIN IN HIS EXECUTIVE CAPACITY, DE BRUIN SHALL REPORT
DIRECTLY TO THE COMPANY'S CHIEF EXECUTIVE OFFICER (THE "CEO")
AND WILL PRIMARILY WORK OUT OF LOCATIONS AND FROM FACILITIES
SELECTED BY DE BRUIN THAT ARE NEITHER OWNED NOR LEASED BY THE
COMPANY. DURING THE TERM OF THIS AGREEMENT, DE BRUIN SHALL
PERFORM SUCH DUTIES AND FUNCTIONS AS ARE
CONSISTENT WITH HIS ROLE AS EXECUTIVE CHAIRMAN AND AS MAY FROM
TIME TO TIME BE ASSIGNED TO HIM BY THE CEO. FROM THE EFFECTIVE
DATE UNTIL THE SIX-MONTH ANNIVERSARY OF THE EFFECTIVE DATE, DE
BRUIN SHALL MAKE HIMSELF AVAILABLE TO WORK AN AGGREGATE OF 520
HOURS IN HIS EXECUTIVE CAPACITY FOR QUIDEL (I.E., AN AVERAGE
OF APPROXIMATELY 20 HOURS PER WEEK, IT BEING UNDERSTOOD THAT
THE SPECIFIC LEVEL OF WORK EACH GIVEN WEEK MAY VARY WIDELY).
FROM THE SIX-MONTH ANNIVERSARY OF THE EFFECTIVE DATE UNTIL THE
ONE-YEAR ANNIVERSARY OF THE EFFECTIVE DATE, DE BRUIN SHALL
MAKE HIMSELF AVAILABLE TO WORK AN AGGREGATE OF 260 HOURS IN
HIS EXECUTIVE CAPACITY FOR QUIDEL (I.E., AN AVERAGE OF 10
HOURS PER WEEK, AGAIN WITH THE UNDERSTANDING THAT THE SPECIFIC
LEVEL OF WORK EACH GIVEN WEEK MAY VARY WIDELY). AFTER THE
ONE-YEAR ANNIVERSARY OF THE EFFECTIVE DATE AND UNTIL THIS
AGREEMENT IS TERMINATED AS PROVIDED HEREIN, DE BRUIN AGREES TO
MAKE HIMSELF AVAILABLE TO WORK IN HIS EXECUTIVE CAPACITY FOR
QUIDEL AN AVERAGE OF TEN (10) HOURS PER WEEK."
3. COMPENSATION. Section 3(a) of the Employment Agreement is
hereby deleted in its entirety and replaced with the following:
"(a) SALARY. FROM THE EFFECTIVE DATE UNTIL THE
SIX-MONTH ANNIVERSARY OF THE EFFECTIVE DATE, THE COMPANY
AGREES TO PAY DE BRUIN A SALARY EQUAL TO $16,667 PER MONTH
(I.E., 50% OF HIS MONTHLY SALARY RATE IMMEDIATELY PRIOR TO THE
EFFECTIVE DATE), PAYABLE IN THE COMPANY'S NORMAL CYCLE, LESS
ALL AMOUNTS REQUIRED BY LAW TO BE WITHHELD OR DEDUCTED. FROM
THE SIX-MONTH ANNIVERSARY OF THE EFFECTIVE DATE UNTIL
TERMINATION OF THIS AGREEMENT, THE COMPANY AGREES TO PAY DE
BRUIN A SALARY EQUAL TO $8,334 PER MONTH (I.E., 25% OF HIS
MONTHLY SALARY RATE IMMEDIATELY PRIOR TO THE EFFECTIVE DATE),
AGAIN IN THE NORMAL CYCLE AND LESS ALL AMOUNTS REQUIRED BY LAW
TO BE WITHHELD OR DEDUCTED. DURING THE TERM OF THIS AGREEMENT,
DE BRUIN SHALL NOT BE ENTITLED TO ANY ADDITIONAL COMPENSATION
FOR HIS BOARD DUTIES AS CHAIRMAN OF THE BOARD OF DIRECTORS OR
AS A RESULT OF HIS ROLE AS AN ACTIVE DIRECTOR OF THE COMPANY.
AFTER TERMINATION OF THIS AGREEMENT, AND FOR AS LONG AS DE
BRUIN SERVES AS CHAIRMAN OF THE BOARD OF DIRECTORS AND/OR AN
ACTIVE DIRECTOR OF THE COMPANY, DE BRUIN'S COMPENSATION SHALL
BE DETERMINED IN ACCORDANCE WITH THE THEN-CURRENT COMPANY
POLICIES FOR COMPENSATION OF OUTSIDE BOARD MEMBERS."
4. VACATION. Section 3(c)(1) of the Employment Agreement is
hereby deleted and replaced with the following:
"(1) AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF
THIS AMENDMENT, THE COMPANY SHALL PAY DE BRUIN IN CASH FOR ALL
ACCRUED, UNPAID VACATION DE BRUIN HAS EARNED UP TO THE
EFFECTIVE DATE. DE BRUIN SHALL ACCRUE VACATION LEAVE AFTER THE
EFFECTIVE DATE ON A PRO
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RATA BASIS CONSISTENT WITH THE PERCENTAGE OF MONTHLY SALARY
RATE BEING PAID."
5. BONUSES. The following sentence is hereby added to the end of
Section 3(c)(5) of the Employment Agreement:
"NOTWITHSTANDING THE FOREGOING, AS TO PARTICIPATION IN BONUS
AND INCENTIVE PLANS AFTER THE EFFECTIVE DATE DE BRUIN SHALL BE
PAID, IF HE REMAINS AN EMPLOYEE HEREUNDER THROUGH AT LEAST
DECEMBER 31, 2001, A BONUS FOR CALENDAR YEAR 2001 EQUAL TO 75%
OF WHAT HE WOULD HAVE RECEIVED UNDER THE COMPANY'S EXISTING
BONUS PLAN HAD DE BRUIN REMAINED THE COMPANY'S FULL-TIME CEO
FOR THE ENTIRE 2001 YEAR. IT IS AGREED THAT DE BRUIN SHALL NOT
PARTICIPATE IN MANAGEMENT BONUS PROGRAMS FOR PERIODS AFTER
DECEMBER 31, 2001 UNLESS OTHERWISE DETERMINED IN THE SOLE
DISCRETION OF THE COMPANY'S COMPENSATION COMMITTEE."
6. OFFICE/ADMINISTRATIVE ALLOWANCE. The following new Section
3(c)(6) is hereby added to the Employment Agreement:
"(6) DURING THE TERM OF THIS AGREEMENT, THE COMPANY SHALL
PAY TO DE BRUIN AN OFFICE/ADMINISTRATIVE ALLOWANCE EQUAL TO
$1,000 PER MONTH IN FULL SATISFACTION OF THE COMPANY'S
OBLIGATION TO REIMBURSE DE BRUIN FOR HIS OFF-SITE OFFICE
EXPENSES. THE COMPANY SHALL PROVIDE AND PAY FOR ALL NECESSARY
COMMUNICATION SUPPORT, INCLUDING COMPUTER AND TELEPHONE."
7. TERM/TERMINATION. Section 6 of the Employment Agreement is
hereby deleted in its entirety and replaced with the following:
"TERM AND TERMINATION. THIS AGREEMENT MAY BE
TERMINATED BY EITHER PARTY (I) UPON AT LEAST THREE (3) MONTHS'
ADVANCE WRITTEN NOTICE SPECIFYING THE TERMINATION DATE IF THE
TERMINATION IS WITHOUT "CAUSE," OR (II) IMMEDIATELY UPON THE
SENDING OF WRITTEN NOTICE IF THE TERMINATION IS FOR "CAUSE";
PROVIDED, HOWEVER, THAT NEITHER PARTY MAY UNILATERALLY SPECIFY
A TERMINATION DATE PRIOR TO THE ONE-YEAR ANNIVERSARY OF THE
EFFECTIVE DATE UNLESS THE TERMINATION IS FOR "CAUSE." CAUSE
SHALL MEAN (1) THE MATERIAL BREACH OF THIS AGREEMENT WHICH
REMAINS UNCURED FOR A PERIOD OF THIRTY (30) CALENDAR DAYS
AFTER RECEIPT OF A WRITTEN NOTICE SPECIFYING THE NATURE OF
SUCH MATERIAL BREACH; (2) FRAUD; (3) PERSONAL DISHONESTY
INVOLVING MONEY OR PROPERTY OF THE COMPANY OR THAT RESULTS IN
MATERIAL HARM TO THE COMPANY; (4) A SERIOUS BREACH OF
FIDUCIARY DUTY TO THE COMPANY INVOLVING PERSONAL PROFIT; (5)
CONVICTION OF A FELONY; OR (6) DEATH OR DISABILITY."
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8. NOTICES. Section 13 of the Employment Agreement is revised to
provide that notices to de Bruin shall be sent to the following address:
XXXXX XX XXXXX
0000 XXX XXXXXX
XX XXXXX, XXXXXXXXXX 00000
9. OPTIONS. The parties specifically acknowledge and agree that,
during the term of this Agreement (as amended), de Bruin shall be for all
purposes be deemed actively employed by the Company under the terms of the
Option Agreement. This shall mean, for example, that during the term of this
Agreement de Bruin shall continue to vest as to the options granted under the
Option Agreement. Under no circumstances shall the fact that de Bruin's
employment with the Company is part-time be deemed a termination of employment.
10. NO OTHER CHANGES. Except as otherwise set forth herein, the
existing terms and provisions of the Employment Agreement and Option Agreement
remain in full force and effect.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the Effective Date.
QUIDEL CORPORATION XXXXX XX XXXXX
By: Xxxxx X. XxXxxxxx By: /s/ Xxxxx xx Xxxxx
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Xxxxx xx Xxxxx
Title: Vice President, Human Resources
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