Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS AGREEMENT (the “
Agreement ”) is made and entered into by and between
Immucor, Inc., a Georgia corporation with its executive offices at
3130 Gateway Drive, Norcross, Georgia 30071 (herein referred to as
“ Employer ” or the “ Company
”), and Geoffrey Crouse, residing at P.O. Box 2241 Rancho
Santa Fe, California 92067 (herein referred to as “
Employee ”).
WHEREAS, the parties hereto desire
to enter into an agreement for Employer’s employment of
Employee on the terms and conditions hereinafter stated.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and agreements herein
contained, the parties hereby agree as follows:
1. Relationship
Established
Employer hereby employs Employee as
Vice President and Chief Operating Officer of the Company to
perform the services and duties normally and customarily associated
with Employee’s position, such duties as may be specified in
the Company’s bylaws, and such other duties as may from time
to time be specified by the Company’s Chief Executive Officer
(the “ CEO ”) and its Board of Directors (the
“ Board ”). Employee will be retained in such
position during the term of his employment under this Agreement,
and Employee hereby agrees to perform such services and duties in
such capacity.
2. Extent of
Services
Employee shall devote substantially
all his business time, attention, skill and efforts to the
performance of his duties hereunder, and shall use his good faith
efforts to promote the success of the Company’s business.
Employer recognizes that Employee has agreed to employment at the
Company’s offices located in Norcross, Georgia. Should the
Company’s executive offices be relocated to, or if Employer
otherwise shall require that Employee work at, a place greater than
thirty (30) miles from the Company’s executive offices
at the address noted above, then Employee shall have the right to
terminate his employment hereunder, and such termination shall be
deemed to be a termination under Section 3(c) hereof for all
purposes hereunder.
3. Term of
Employment
Employee’s employment
hereunder shall commence on the earlier of August 15, 2009 or
an earlier date agreed to by the parties in writing, which
agreement will be attached to and will thereupon become part of
this Agreement (such earlier date being hereinafter called the
“ Effective Date ”) and shall continue for an
initial period of three (3) years (the “ Initial
Term ”) and any Renewal Term (as defined below), unless
sooner terminated by the first to occur of the
following:
(a) The death or complete disability
of Employee. “ Complete disability ”, as used
herein, shall mean the inability of Employee, due to illness,
accident or any other physical or mental incapacity, to perform the
services provided for hereunder for an aggregate of twelve
(12) months during Initial Term (as defined below) or any
Renewal Term (as defined below).
(b) The discharge of Employee by
Employer for Cause. Employee’s discharge shall be “
for Cause ” if due to any of the following:
(i) Employee’s dishonesty in
connection with his employment with Employer that causes Employer
material harm,
(ii) An act of defalcation committed
by Employee against Employer that causes Employer material harm,
or
(iii) Employee’s continuing
refusal to perform reasonable duties assigned to him hereunder that
are consistent with Employee’s position (unless such refusal
occurs following the occurrence of a Change of Control, as defined
herein); provided that Employer may only discharge Employee for
Cause pursuant to this subsection (b)(iii) if Employer provides
Employee with written notice of such refusal and Employee does not
cure such failure within thirty (30) days of his receipt of
such written notice.
Disability because of illness or
accident or any other physical or mental disability shall not
constitute a basis for discharge for Cause.
(c) The (i) discharge of
Employee by Employer without Cause (which shall be deemed to have
occurred if Employee’s employment hereunder terminates under
Section 7 hereof); or (ii) the termination by Employee
for Good Reason. As used herein, “ Good Reason ”
means (A) the assignment to Employee of any duties or
responsibilities inconsistent with the scope of the duties or
responsibilities associated with his title or position or resulting
in any adverse change of his title, position, status or
circumstances of employment; (B) the taking of any action by
Employer which would materially and adversely affect
Employee’s participation in, or materially reduce his
benefits under, Employer’s benefit plans (including equity
benefits) as of the Effective Date, other than actions that apply
to all executive officers of the Company generally; (C) a
breach by Employer of any of the material terms of this Agreement
if Employee provides Employer with written notice of such breach
and Employer does not cure such breach within thirty (30) days
after its receipt of such written notice, provided that such
cure period shall be ten (10) days after its receipt of such
written notice in the case of non-payment by Employer of any
compensation or benefits due and payable to Employee; or
(D) should Employer’s executive offices be relocated to,
or if Employer otherwise shall require that Employee work at, a
place greater than thirty (30) miles from the Company’s
executive offices at the address noted above.
(d) At Employee’s request,
during the thirty (30) day period immediately following the
first anniversary of the Effective Date, with or without the
express prior written consent of Employer.
(e) At Employee’s election
upon thirty (30) days notice (or such lesser notice as
Employer may accept), without the express prior written consent of
Employer.
If not sooner terminated under the
provisions of Sections 3(a) through 3(e) above, the Initial Term
shall automatically renew for successive additional periods of
three (3) years (each a “ Renewal Term ”);
provided, however, the Initial Term and any Renewal Term will not
automatically renew if at least ninety (90) days prior to the
end of the Initial Term or Renewal Term, as the case may be, a
party notifies the other in writing that he or it intends to
propose amendments to this Agreement or that such Initial Term or
Renewal Term will not renew, in either which case this Agreement
will expire at the end of such Initial Term or Renewal Term, as the
case may be, unless before that time the Company and Employee enter
into a written amendment of this Agreement.
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4. Compensation; Stock Option and Stock
Award
(a) Subject to the provisions of
Section 4(e), Employer will pay to Employee as base
compensation for the services to be performed by him hereunder the
base compensation specified on Schedule A attached
hereto.
(b) Employee may be entitled to
additional bonus compensation as may be determined by the Board
from time to time, any such determination to be final, binding and
conclusive on Employee and all other persons. Without limiting the
preceding sentence, Employee shall be eligible to participate in
the Company’s FY 2010 Bonus Plan.
(c) In the event Employee’s
employment shall terminate under Section 3(c) (discharge
without Cause or for Good Reason) or Section 3(d) hereof,
Employee shall be paid an amount equal to the Average Annual
Compensation payable to Employee under Schedule A for the
longer of the remainder of the term of this Agreement or eighteen
(18) months, in accordance with the payment schedule set forth
on Schedule A , to be paid over the remainder of the term of
this Agreement following termination or the eighteen
(18) months following termination of this Agreement, as the
case may be. For purposes of this Agreement, “ Average
Annual Compensation ” shall mean Employee’s annual
base compensation payable to Employee under Schedule A in
accordance with the payment schedule set forth on Schedule A
, together with his Average Bonus. “ Average Bonus
” shall mean the average bonus paid to Employee over the last
two (2) years in which Employee was eligible to receive a
bonus or such lesser number of years in which Employee was eligible
to receive a bonus. If the termination occurs before Employee
becomes eligible to receive a bonus, then “Average
Bonus” shall be deemed to be a pro rata portion of the
average bonus paid to the Company’s CEO over the last two
(2) years in which he was eligible to receive a bonus, such
proration to be based on the differences in their respective base
compensation.
(d) As long as Employee is employed
hereunder, Employer will provide Employee an automobile allowance
as specified on Schedule A attached hereto.
(e) In the event Employee’s
employment shall terminate under Section 3(a), 3(b) or 3(e)
hereof, all of Employer’s future obligations to Employee
hereunder will cease automatically and Employee shall only be
entitled to compensation and other benefits accrued through the
effective date of termination.
(f) As of the Effective Date,
Employee shall be issued stock options to acquire 50,000 shares of
the Company’s common stock, $0.10 par value per share, for an
exercise price equal to the fair market value of such common stock
as of the Effective Date, pursuant to the Company’s 2005
Long-Term Incentive Plan. If Employee receives a promotion on or
prior to the first anniversary of the Effective Date, Employee
shall be issued stock options to acquire 100,000 shares of the
Company’s common stock, $0.10 par value per share, for an
exercise price equal to the fair market value of such common stock
as of the date of issuance, pursuant to the Company’s 2005
Long-Term Incentive Plan. All such stock options shall vest over
four years, in accordance with the Company’s standard vesting
policy under the Company’s 2005 Long-Term Incentive
Plan.
(g) Except to the extent prohibited
by applicable law, upon Employer’s termination of
Employee’s employment under this Agreement for any reason,
Employee shall be entitled to exercise all vested stock options for
a period of twelve (12) months following the effective date of
such termination.
(h) As of the Effective Date,
Employee shall be issued 10,000 Restricted Shares of the
Company’s common stock, $0.10 par value per share, pursuant
to the Company’s 2005 Long-Term Incentive Plan. All such
Restricted Shares shall vest over five years, in accordance with
the Company’s standard vesting policy under the
Company’s 2005 Long-Term Incentive Plan.
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(i) Schedule A attached
hereto may be amended from time to time upon the parties’
revision and re-execution thereof, whereupon the amended
Schedule A shall be attached hereto; provided, however, the
amended Schedule A shall be effective upon such
re-execution, whether or not it is attached hereto.
5. Expenses
Employee shall be entitled to
receive reimbursement for, or payment directly by Employer of, all
reasonable expenses incurred by Employee in the performance of his
duties under this Agreement, provided that Employee accounts
therefor in writing and that such expenses are ordinary and
necessary business expenses of the Employer within the meaning of
Section 162 of the Internal Revenue Code of 1986, as
amended.
6. Insurance, Relocation and
Other Fringe Benefits
(a) Employer will (i) provide
Employee with health insurance, dental insurance, long-term
disability insurance, paid vacations and other fringe benefits in
the form and in dollar amounts substantially equivalent to the
benefits provided to its other executive officers of the Company,
and (ii) reimburse Employee up to $2,500 per year (or such
greater amount as is reimbursed by the Company to other executive
officers of the Company) for the cost of life insurance on his life
upon presentation of an appropriate written request
therefor.
(b) Without limiting the preceding
sentence, Employee will be entitled 27 days paid vacation (adjusted
for additional years of service after the Effective Date), to be
taken in accordance with Employer’s standard vacation policy,
except that vacation days will begin to accrue on the Effective
Date without regard to the 90-day waiting period stated in that
policy.
(c) From the Effective Date through
January 15, 2010, Employer will reimburse Employee $7,300 per
month, representing Employee’s current monthly housing
obligation plus a Gross Up Amount. Employee must make reasonable
efforts to “sub-let” his home, and any amounts received
due to his ability to successfully “sub-let” his home
with respect to such time period will reduce Employer’s
obligations under this subsection (c).
(d) In the event Employee is
required to reimburse his current employer for any relocation
assistance benefits previously made on his behalf, Employer will
reimburse Employee up to a maximum of $120,000, plus a Gross Up
Amount, less any tax savings realized by Employee in connection
with reimbursement of his current employer for any such relocation
assistance benefits.
(e) Employer will pay or reimburse
Employee, at Employer’s option, for the standard closing
costs on the purchase of a new principal residence in Georgia, up
to a cap of $15,000, in accordance with our relocation policy.
Employer will pay or reimburse Employee, at Employer’s
option, for the shipment of Employee’s household goods and
storage in accordance with Employer’s relocation policy, plus
a Gross Up Amount. Employer will pay or reimburse Employee, at
Employer’s option, for house hunting trips and temporary
housing, plus a Gross Up Amount; provided that Employee will be
required to provide Employer with appropriate receipts for such
expenses, and these expenses will be taxable to Employee.
Additionally, in order to reimburse Employee for other incidental
moving expenses, Employer will pay to Employee an amount equal to
one-twelfth of Employee’s base compensation specified on
Schedule A attached hereto, plus a Gross Up Amount.
(f) Employer shall provide Employee
with tax preparation assistance with respect to calendar year 2009.
In connection therewith, at Employer’s option, Employer shall
either make tax preparation services available to Employee at no
cost or reimburse Employee for outside tax preparation services
arranged by Employee in an amount up to $5,000 per year, plus a
Gross Up Amount.
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(g) As used in this Agreement, a
“ Gross Up Amount ” with respect to any payment
to Employee is an additional amount necessary to compensate
Employee for any federal, state and local taxes he may incur by
reason of such payment (a “gross up payment”)
plus any additional amount necessary to compensate
him for any such taxes incurred by him by reason of such gross up
payment.
7. Termination of Employment Upon
Sale or Change of Control; Severance
(a) Notwithstanding anything to the
contrary contained in this Agreement, Employer may terminate
Employee’s employment hereunder if any of the following
events occur (each such event being referred to as a “
Change of Control ”):
(i) Sale of Employer’s
Assets . The sale of all or substantially all of the
Company’s assets to a single purchaser or group of associated
purchasers, whether in a single transaction or a series of related
transactions.
(ii) Sale of Employer’s
Shares . The sale, exchange, or other disposition, in one
transaction, or in a series of related transactions, of twenty
percent (20%) or more of the Company’s outstanding
shares of capital stock.
(iii) Merger or Consolidation
. The merger or consolidation of the Company in a transaction or
series of transactions in which the Company’s shareholders
receive or retain less than fifty percent (50%) of the
outstanding voting shares of the new or surviving
corporation.
(iv) Other Changes in Control
. The occurrence of any change in control of the Company within the
meaning of federal securities law.
(b) If, within three (3) months
prior to or two (2) years after a Change of Control, Employer
terminates Employee’s employment (whether for Cause or
without Cause) or Employee terminates his employment for Good
Reason, then Employer shall pay Employee (instead of the amount
specified in Section 4(c), but together with the amount
specified in Section 7(d)) an amount equal to two
(2) times Employee’s Average Annual Compensation (as
defined below), to be paid in a single payment at the time of
termination. In consideration of such payment and his employment
hereunder through the date of such termination, Employee agrees to
remain bound by the provisions of this Agreement which specifically
relate to periods, activities or obligations upon or subsequent to
the termination of Employee’s employment.
(c) Immediately prior to a Change of
Control, (i) the restrictions on any and all outstanding
incentive awards granted to Employee (including, without
limitation, restricted stock and granted performance shares or
units) under any incentive plan or arrangement shall lapse and such
incentive award shall become 100% vested, and (ii) any and all
stock options and stock appreciation rights issued to Employee
shall become immediately exercisable and shall become 100%
vested.
(d) If Employer terminates
Employee’s employment other than for Cause or if Employee
terminates his employment for Good Reason or pursuant to
Section 3(d), then Employer shall pay to Employee an
outplacement assistance benefit for the purpose of assisting
Employee with counseling, travel and other expenses related to
finding new employment. Such amount shall be paid in cash in the
amount specified on Schedule A attached hereto.
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8. Indemnification .
On the Effective Date, the Company
and Employee shall enter into the Indemnification Agreement
substantially in the form attached as Exhibit A hereto and
the Board of Directors of the Company shall have approved the terms
and conditions of such Indemnification Agreement.
9. Reimbursement of Legal
Fees
Employer shall promptly reimburse
Employee for any and all legal fees and expenses incurred by him
(up to $10,000) in connection with his negotiation and execution of
this Agreement. Additionally, Employer shall promptly reimburse
Employee for any and all legal fees and expenses incurred by him as
a result of a termination of employment described in
Section 7(b), including, without limitation, all fees and
expenses incurred to enforce the provisions of this
Agreement.
10. Prohibited
Practices
During the term of Employee’s
employment hereunder, and for a period of two (2) years after
such employment is terminated for any reason, in consideration of
the compensation being paid to Employee hereunder, Employee
shall:
(a) not solicit business from anyone
who is or becomes an active or prospective customer of Employer or
its affiliates and with whom Employee had material contact, during
the three (3) year period immediately prior to
Employee’s termination of employment under this Agreement, in
connection with Employee’s employment under this Agreement,
if the purpose of the solicitation is to induce such active or
prospective customer to purchase products from another company that
are substantially similar to the Company’s products;
and
(b) not solicit for employment or
hire any employee of Employer or its affiliates who was an employee
of Employer or its affiliates during the three (3) year period
immediately prior to Employee’s termination of employment
under this Agreement and whom Employee had contact with during and
in connection with his employment under this Agreement; provided,
that the foregoing will not restrict Employee from
(i) engaging in general solicitation efforts, such as, by way
of example only, newspaper advertisements, utilizing
“headhunters” without direction from Employee to call
an employee of Employer or its affiliates or contacting individuals
whose resumes are listed on websites or other publicly accessible
media, or (ii) hiring any employee of Employer or its
affiliates who either responds to any such regular solicitation
effort that was not targeted to such individual.
11. Non-Disclosure
(a) Protection of Trade
Secrets . Employee acknowledges that during the course of his
employment, Employee will have significant access to, and
involvement with, the Company’s Trade Secrets and
Confidential Information. Employee agrees to maintain in strict
confidence and, except as necessary to perform his duties for the
Company, Employee agrees not to use or disclose any Trade Secrets
of the Company during or after his employment. Employee agrees that
the provisions of this subsection shall be deemed sufficient to
protect Trade Secrets of third parties provided to the Company
under an obligation of secrecy. As provided by Georgia statutes,
“ Trade Secret ” shall mean any information
(including, without limitation, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a
technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers) that:
(i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from
its disclosure or use; and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its
secrecy.
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(b) Protection of Other
Confidential Information . In ad
