Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 10K 5/31/99 73± 350K
3: EX-10 Employment Agreements 41± 166K
2: EX-10.1-5 Building Lease Amendment 6± 25K
4: EX-10.24 First Modification of Loan Agreement 5± 25K
5: EX-21 Subs of Registrant 1 4K
6: EX-23 Consent 1 7K
7: EX-27 FDS--FY 99 1 6K
EX-10 — Employment Agreements
| EX-10 | 1st “Page” of 13 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
|---|
Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this 13th day of October,
1998, by and between Immucor, Inc., a Georgia corporation with its executive
offices at 3130 Gateway Drive, Norcross, Georgia 30091 (herein referred to as
"Employer" or the "Company"), and Edward L. Gallup, residing at 80 Skyland Dr.,
Roswell, Georgia 30075 (herein referred to as "Employee").
WITNESSETH
WHEREAS, the parties hereto desire to enter into an agreement for
Employer's employment of Employee on the terms and conditions hereinafter
states.
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 President and CEO of Employer to perform the
services and duties normally and customarily associated with Employee's
position, such duties as specified in the Employer's bylaws, and such other
duties as may from time to time be specified by the Employer's Board of
Directors. Employee will be retained in this position during the term of his
employment under this Employment Agreement, and hereby agrees to perform such
services and duties in this 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 best
efforts to promote the success of the Employer's business. Employer recognizes
that Employee has agreed to employment at Employer's offices located in
Norcross, Georgia. 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 Employee's principal residence noted in Section 13(b)
hereof, 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 October 13, 1998 (hereinafter
called the "Effective Date," and shall continue for a period of five (5) years,
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 12 months during the term
hereof.
(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,
(ii) An act of defalcation committed by Employee,
(iii) Employee's continuing inability or refusal to perform
reasonable duties assigned to him hereunder (unless such
refusal occurs following the occurrence of a Change of
Control, as defined herein) or
(iv) Employee's moral turpitude.
Disability because of illness or accident or any other physical or
mental disability shall not constitute a basis for discharge for Cause.
(c) The discharge of Employee by Employer without Cause (which shall be deemed
to have occurred if Employee's employment hereunder terminates under
Section 7 hereof).
(d) At Employee's request and with the express prior written consent of
Employer.
(e) At Employee's election upon 120 days notice (or such lesser notice as
Employer may accept), without the express prior written consent of
Employer.
(f) At the end of the term of the Agreement, or any extension thereof, if the
either the Employer or Employee gives 60 days notice to the other of
non-renewal of the Agreement.
If not sooner terminated under the provisions of Sections 3(a) through 3(f)
above, the term of Employee's employment hereunder shall automatically
renew for an additional period of five (5) years.
4. Compensation
(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. Schedule A 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.
(b) The Employee may be entitled to additional bonus compensation as may be
determined by the Board of Directors of Employer from time to time, any
such determination to be final, binding, conclusive on Employee and all
other persons.
(c) In the event Employee's employment shall terminate under Section 3(c)
hereof, the Employee shall be paid an amount equal to the Average Annual
Compensation payable to Employee under Schedule A for the remainder of the
term of this Agreement 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. For purposes of this Section, "Average Annual
Compensation" shall mean the 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 years in which the
Employee was eligible to receive a bonus or such lesser number of years in
which Employee was eligible to receive a bonus.
(d) As long as Employee is employed hereunder, Employer, at its election, will
either (a) supply to Employee an automobile of a type consistent with his
duties and salary, and will pay the reasonable expenses of operating,
maintaining the automobile and insuring the automobile and its driver, or
(b) provide Employee an automobile allowance as specified on Schedule A
attached hereto, and will pay the reasonable expenses of operating,
maintaining the automobile and insuring the automobile and its driver.
Schedule A 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
re-execution, whether or not it is attached hereto.
(e) In the event Employee's employment shall terminate under Section 3(a),
3(b), 3(d), 3(e) or 3(f) hereof, all of Employer's obligations to Employee
hereunder will cease automatically and Employee shall only be entitled to
compensation accrued through the date of termination.
5. Expenses
Employee shall be entitled to receive reimbursement for, or payment directly by
the Employer of, all reasonable expenses incurred by Employee at the request of
the Employer 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 and Other Fringe Benefits
Employer will provide Employee with (a) 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
the Employer's other employees in a similar position and with similar
responsibilities, and (b) life insurance for the benefit of the Employee and/or
the Employer, as provided on Schedule B attached hereto. Schedule B may be
amended from time to time upon the parties' revision and re-execution thereof,
whereupon the amended Schedule B shall be attached hereto; provided, however,
the amended Schedule B shall be effective upon such re-execution, whether or not
it is attached hereto.
7. Termination of Employment Upon Sale or Change of Control of Employer's
Business; Severance
(a) Notwithstanding anything to the contrary contained in this Agreement,
either Employer or Employee may terminate Employee's employment hereunder
if any of the following events occur:
(i) Sale of Employer's Assets. The sale of all or substantially
all of Employer'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 Employer's
outstanding shares of capital stock.
(iii) Merger or Consolidation. The merger or consolidation of
Employer in a transaction or series of transactions in which
Employer'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 Employer within the meaning of federal
securities law.
(b) If, within 60 days after an event described in Sections 7(a)(i), (a)(ii),
(a)(iii) or (a)(iv) (a "Change of Control"), the Employee voluntarily
terminates his employment with the Employer, or if within two years after a
Change of Control Employer terminates Employee's employment (whether for
Cause or without Cause) the Employer terminates Employee's employment, then
Employer shall pay Employee (instead of the amount specified in Section
4(c), if any, but together with the amount specified in Section 7(d), if
any) an amount equal to five times the 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) Upon a Change of Control, Employee's existing options under any Immucor
Inc. (the "Company") option plan, including the Company's 1990 Stock Option
Plan, the Company's 1995 Stock Option Plan, and the Company's 1998 Stock
Option Plan, if any, shall immediately vest and become exercisable in full
and shall remain exercisable for the full term stated in such option plan
or in any stock option agreement between the Company and the Employee.
(d) If, within 60 days after a Change of Control, either the Employee
voluntarily terminates his employment with the Employer or the Employer
terminates Employee's employment other than for Cause, 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. Schedule A 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.
(e) For purposes of this Section, "Average Annual Compensation" shall mean the
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 of the bonuses
paid to Employee over the last two years (or such lesser number of years in
which Employee was eligible to receive a bonus) in which the Employee was
eligible to receive a bonus.
(f) Certain Additional Payments by Employer. In the event that Employee becomes
entitled to severance benefits or any other benefits or payments in
connection with this Agreement, whether pursuant to the terms of this
Agreement or otherwise (collectively, the "Total Benefits") and (ii) any of
the Total Benefits will be subject to the excise tax imposed pursuant to
Section 4999 of the Internal Revenue Code ("Excise Tax"), which tax may be
imposed if the payments made to Employee are deemed to be "excess parachute
payments" within the meaning of Section 280G of the Code, then Employer
shall pay to Employee an additional amount (the "Gross-Up Payment") such
that the net amount retained by Employee, after deduction of any Excise Tax
on the Total Benefits and any federal, state and local income taxes, Excise
Tax, and FICA and Medicare withholding taxes upon the payment provided for
by this Section, will be equal to the Total Benefits so that Employee shall
be, after payment of all taxes, in the same financial position as if no
taxes under Section 4999 had been imposed upon him. For purposes of this
Section, Employee will be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Excise Tax is (or would be) payable and state and local income taxes at the
highest marginal rate of taxation in the state and locality of Employee's
residence on the Date of Termination, net of the reduction in federal
income taxes that could be obtained from deduction of such state and local
taxes (calculated by assuming that any reduction under Section 68 of the
Internal Revenue Code in the amount of itemized deductions allowable to
Employee applies first to reduce the amount of such state and local income
taxes that would otherwise be deductible by Employee).
8. 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.
9. Prohibited Practices.
During the term of Employee's employment hereunder, for a period of two 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 the Employee had dealt
with or had material contact during his term of employment under this
Agreement.
(b) not solicit for employment or hire any employee of Employer or its
affiliates that the Employee had contact with during his term of employment
under this Agreement.
10. Non-Disclosure.
a. Protection of Trade Secrets. Employee acknowledges that during the course
of his or her 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 or her duties for the Company, Employee agrees not to use or
disclose any Trade Secrets of the Company during or after his or her
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, but not limited to,
technical or non-technical 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.
b. Protection of Other Confidential Information. In addition, Employee agrees
to maintain in strict confidence and, except as necessary to perform his or
her duties for the Company, not to use or disclose any Confidential
Information of the Company during his or her employment and for a period of
12 months following termination of Employee's employment. "Confidential
Information" shall mean any internal, non-public information (other than
Trade Secrets already addressed above) concerning (without limitation) the
Company's financial position and results of operations (including revenues,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods; training, educational and
administrative manuals; supplier information and purchase histories;
customers or clients; personnel and salary information; and employee lists.
Employee agrees that the provisions of this subsection shall be deemed
sufficient to protect Confidential Information of third parties provided to
the Company under an obligation of secrecy.
c. Rights to Work Product. Except as expressly provided in this Agreement, the
Company alone shall be entitled to all benefits, profits and results
arising from or incidental to Employee's performance of his or her job
duties to the Company. To the greatest extent possible, any work product,
property, data, invention, "know-how", documentation or information or
materials prepared, conceived, discovered, developed or created by Employee
in connection with performing his or her employment responsibilities during
Employee's employment with the Company shall be deemed to be "work made for
hire" as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as
amended, and owned exclusively and perpetually by the Company. Employee
hereby unconditionally and irrevocably transfers and assigns to the Company
all intellectual property or other rights, title and interest Employee may
currently have (or in the future may have) by operation of law or otherwise
in or to any work product. Employee agrees to execute and deliver to the
Company any transfers, assignments, documents or other instruments which
the Company may deem necessary or appropriate to vest complete and
perpetual title and ownership of any work product and all associated rights
exclusively in the Company. The Company shall have the right to adapt,
change, revise, delete from, add to and/or rearrange the work product or
any part thereof written or created by Employee, and to combine the same
with other works to any extent, and to change or substitute the title
thereof, and in this connection Employee hereby waives the "moral rights"
of authors as that term is commonly understood throughout the world
including, without limitation, any similar rights or principles of law
which Employee may now or later have by virtue of the law of any locality,
state, nation, treaty, convention or other source. Unless otherwise
specifically agreed, Employee shall not be entitled to any additional
compensation, beyond his or her salary, for any exercise by the Company of
its rights set forth in the preceding sentence.
d. Return of Materials. Employee shall surrender to the Company, promptly upon
its request and in any event upon termination of Employee's employment, all
media, documents, notebooks, computer programs, handbooks, data files,
models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in
the Employee's possession or control, including all copies thereof,
relating to the Company, its business, or its customers. Upon the request
of the Company, employee shall certify in writing compliance with the
foregoing requirement.
11. Severability.
It is the intention of the parties that if any of the restrictions or covenants
contained herein is held to cover a geographic area or to be for a length of
time or to apply to business activities which is not permitted by applicable
law, or in any way construed to be too broad or to any extent invalid, such
provision shall not be construed to be null, void and of no effect, but to the
extent such provision would be valid or enforceable under applicable law, a
court of competent jurisdiction shall construe and interpret or reform this
Section to provide for a covenant having the maximum enforceable geographic
area, time period and any other provisions (not greater than those contained
herein) as shall be valid and as shall be valid and enforceable under such
applicable law.
If any provision contained in this Section shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Section, but this
Section shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
12. Waiver of Provisions
Failure of either party to insist, in one or more instances, on performance by
the other in strict accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right granted hereunder or
of the future performance of any such term or condition or of any other term of
condition of this Agreement, unless such waiver's contained in a writing signed
by the party against whom the waiver or relinquishment is sought to be enforced.
13. Notices
Any notice or other communication to a party required or permitted hereunder
shall be in a writing and shall be deemed sufficiently given when received by
the party (regardless of the method of delivery), or if sent by registered or
certified mail, postage and fees prepaid, addressed to the party as follows, on
the third business day after mailing:
(a) If to Employer: 3130 Gateway Drive Norcross, GA 30091
(b) If to Employee: 80 Skyland Drive Roswell, GA 30075
or in each case to such other address as the party may time to time designate in
writing to the other party.
14. Governing Law
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia.
15. Enforcement.
In the event of any breach or threatened breach by Employee of any covenant
contained in Sections 9 or 10 hereof, the resulting injuries to the Company
would be difficult or impossible to estimate accurately, even though irreparable
injury or damages would certainly result. Accordingly, an award of legal
damages, if without other relief, would be inadequate to protect the Company.
Employee, therefore, agrees that in the event of any such breach, the Company
shall be entitled to obtain from a court of competent jurisdiction an injunction
to restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief. Should
the Company have cause to seek such relief, no bond shall be required from the
Company, and Employee shall pay all attorney's fees and court costs which the
Company may incur to the extent the Company prevails in its enforcement action.
16. Entire Agreement; Modification and Amendment
This Agreement contains the sole and entire agreement between the parties and
supersedes all prior discussions and agreements between the parties with respect
to the matters addressed herein, and any such prior agreement shall, from and
after the date hereof, be null and void. This Agreement and the attached
Schedules shall not be modified or amended except by an instrument in writing
signed by the parties hereto.
17. Parties Benefited.
This Agreement shall insure to the benefit of, and be binding upon, Employee,
his heirs, executors and administrators, and Employer, its subsidiaries,
affiliates, and successors.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first mentioned above.
IMMUCOR, INC. EMPLOYEE
By: /s/ Steven C. Ramsey By: /s/ Edward L. Gallup
Steven C. Ramsey, Secretary
SCHEDULE A
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
EDWARD L. GALLUP.
Base compensation: $211,219.00 a year payable in 26 installments every two
weeks.
Outplacement Assistance Benefit: $30,000.00.
Automobile Allowance: $9,600.00 a year payable in 12 monthly installments.
Immucor, Inc. Employee
By: /s/ Steven C. Ramsey By: /s/ Edward L. Gallup
Steven C. Ramsey, Secretary
Date: October 13, 1998 Date: October 13, 1998
(This Schedule A supersedes and replaces any Schedule A previously executed by
the parties hereto.)
SCHEDULE B
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
EDWARD L. GALLUP
Life Insurance for the Benefit of Employer: N/A
Insured:
Face Amount: $
Owner of Policy: Employer
Policy Number:
Insurance Company:
Life Insurance for the Benefit of Employee:
Insured: Edward L. Gallup
Face Amount: $Variable
Owner of Policy: Edward L. Gallup
Policy Number: 2,356,486
Insurance Company: Phoenix Home Life Mutual Insurance Company
Immucor, Inc. Employee
By: /s/ Steven C. Ramsey By: /s/ Edward L. Gallup
Steven C. Ramsey, Secretary
Date: October 13, 1998 Date: October 13, 1998
(This Schedule B supersedes and replaces any Schedule B previously executed by
the parties hereto.)
Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this 13th day of October,
1998, by and between Immucor, Inc., a Georgia corporation with its executive
offices at 3130 Gateway Drive, Norcross, Georgia 30091 (herein referred to as
"Employer" or the "Company"), and Ralph A. Eatz, residing at 1350 Treebrook
Court, Roswell, Georgia 30075 (herein referred to as "Employee").
WITNESSETH
WHEREAS, the parties hereto desire to enter into an agreement for
Employer's employment of Employee on the terms and conditions hereinafter
states.
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 Senior Vice President, Operations of
Employer to perform the services and duties normally and customarily associated
with Employee's position, such duties as specified in the Employer's bylaws, and
such other duties as may from time to time be specified by the Employer's Board
of Directors. Employee will be retained in this position during the term of his
employment under this Employment Agreement, and hereby agrees to perform such
services and duties in this 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 best
efforts to promote the success of the Employer's business. Employer recognizes
that Employee has agreed to employment at Employer's offices located in
Norcross, Georgia. 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 Employee's principal residence noted in Section 13(b)
hereof, 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 October 13, 1998 (hereinafter
called the "Effective Date," and shall continue for a period of five (5) years,
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 12 months during the term
hereof.
(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,
(ii) An act of defalcation committed by Employee,
(iii) Employee's continuing inability or refusal to perform
reasonable duties assigned to him hereunder (unless such
refusal occurs following the occurrence of a Change of
Control, as defined herein) or
(iv) Employee's moral turpitude.
Disability because of illness or accident or any other physical or
mental disability shall not constitute a basis for discharge for Cause.
(c) The discharge of Employee by Employer without Cause (which shall be deemed
to have occurred if Employee's employment hereunder terminates under
Section 7 hereof).
(d) At Employee's request and with the express prior written consent of
Employer.
(e) At Employee's election upon 120 days notice (or such lesser notice as
Employer may accept), without the express prior written consent of
Employer.
(f) At the end of the term of the Agreement, or any extension thereof, if the
either the Employer or Employee gives 60 days notice to the other of
non-renewal of the Agreement.
If not sooner terminated under the provisions of Sections 3(a) through 3(f)
above, the term of Employee's employment hereunder shall automatically
renew for an additional period of five (5) years.
4. Compensation
(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. Schedule A 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.
(b) The Employee may be entitled to additional bonus compensation as may be
determined by the Board of Directors of Employer from time to time, any
such determination to be final, binding, conclusive on Employee and all
other persons.
(c) In the event Employee's employment shall terminate under Section 3(c)
hereof, the Employee shall be paid an amount equal to the Average Annual
Compensation payable to Employee under Schedule A for the remainder of the
term of this Agreement 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. For purposes of this Section, "Average Annual
Compensation" shall mean the 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 years in which the
Employee was eligible to receive a bonus or such lesser number of years in
which Employee was eligible to receive a bonus.
(d) As long as Employee is employed hereunder, Employer, at its election, will
either (a) supply to Employee an automobile of a type consistent with his
duties and salary, and will pay the reasonable expenses of operating,
maintaining the automobile and insuring the automobile and its driver, or
(b) provide Employee an automobile allowance as specified on Schedule A
attached hereto, and will pay the reasonable expenses of operating,
maintaining the automobile and insuring the automobile and its driver.
Schedule A 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
re-execution, whether or not it is attached hereto.
(e) In the event Employee's employment shall terminate under Section 3(a),
3(b), 3(d), 3(e) or 3(f) hereof, all of Employer's obligations to Employee
hereunder will cease automatically and Employee shall only be entitled to
compensation accrued through the date of termination.
5. Expenses
Employee shall be entitled to receive reimbursement for, or payment directly by
the Employer of, all reasonable expenses incurred by Employee at the request of
the Employer 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 and Other Fringe Benefits
Employer will provide Employee with (a) 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
the Employer's other employees in a similar position and with similar
responsibilities, and (b) life insurance for the benefit of the Employee and/or
the Employer, as provided on Schedule B attached hereto. Schedule B may be
amended from time to time upon the parties' revision and re-execution thereof,
whereupon the amended Schedule B shall be attached hereto; provided, however,
the amended Schedule B shall be effective upon such re-execution, whether or not
it is attached hereto.
7. Termination of Employment Upon Sale or Change of Control of Employer's
Business; Severance
(a) Notwithstanding anything to the contrary contained in this Agreement,
either Employer or Employee may terminate Employee's employment hereunder
if any of the following events occur:
(i) Sale of Employer's Assets. The sale of all or substantially
all of Employer'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 Employer's
outstanding shares of capital stock.
(iii) Merger or Consolidation. The merger or consolidation of
Employer in a transaction or series of transactions in which
Employer'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 Employer within the meaning of federal
securities law.
(b) If, within 60 days after an event described in Sections 7(a)(i), (a)(ii),
(a)(iii) or (a)(iv) (a "Change of Control"), the Employee voluntarily
terminates his employment with the Employer, or if within two years after a
Change of Control Employer terminates Employee's employment (whether for
Cause or without Cause) the Employer terminates Employee's employment, then
Employer shall pay Employee (instead of the amount specified in Section
4(c), if any, but together with the amount specified in Section 7(d), if
any) an amount equal to five times the 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) Upon a Change of Control, Employee's existing options under any Immucor
Inc. (the "Company") option plan, including the Company's 1990 Stock Option
Plan, the Company's 1995 Stock Option Plan, and the Company's 1998 Stock
Option Plan, if any, shall immediately vest and become exercisable in full
and shall remain exercisable for the full term stated in such option plan
or in any stock option agreement between the Company and the Employee.
(d) If, within 60 days after a Change of Control, either the Employee
voluntarily terminates his employment with the Employer or the Employer
terminates Employee's employment other than for Cause, 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. Schedule A 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.
(e) For purposes of this Section, "Average Annual Compensation" shall mean the
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 of the bonuses
paid to Employee over the last two years (or such lesser number of years in
which Employee was eligible to receive a bonus) in which the Employee was
eligible to receive a bonus.
(f) Certain Additional Payments by Employer. In the event that Employee becomes
entitled to severance benefits or any other benefits or payments in
connection with this Agreement, whether pursuant to the terms of this
Agreement or otherwise (collectively, the "Total Benefits") and (ii) any of
the Total Benefits will be subject to the excise tax imposed pursuant to
Section 4999 of the Internal Revenue Code ("Excise Tax"), which tax may be
imposed if the payments made to Employee are deemed to be "excess parachute
payments" within the meaning of Section 280G of the Code, then Employer
shall pay to Employee an additional amount (the "Gross-Up Payment") such
that the net amount retained by Employee, after deduction of any Excise Tax
on the Total Benefits and any federal, state and local income taxes, Excise
Tax, and FICA and Medicare withholding taxes upon the payment provided for
by this Section, will be equal to the Total Benefits so that Employee shall
be, after payment of all taxes, in the same financial position as if no
taxes under Section 4999 had been imposed upon him. For purposes of this
Section, Employee will be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Excise Tax is (or would be) payable and state and local income taxes at the
highest marginal rate of taxation in the state and locality of Employee's
residence on the Date of Termination, net of the reduction in federal
income taxes that could be obtained from deduction of such state and local
taxes (calculated by assuming that any reduction under Section 68 of the
Internal Revenue Code in the amount of itemized deductions allowable to
Employee applies first to reduce the amount of such state and local income
taxes that would otherwise be deductible by Employee).
8. 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.
9. Prohibited Practices.
During the term of Employee's employment hereunder, for a period of two 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 the Employee had dealt
with or had material contact during his term of employment under this
Agreement.
(b) not solicit for employment or hire any employee of Employer or its
affiliates that the Employee had contact with during his term of employment
under this Agreement.
10. Non-Disclosure.
a. Protection of Trade Secrets. Employee acknowledges that during the course
of his or her 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 or her duties for the Company, Employee agrees not to use or
disclose any Trade Secrets of the Company during or after his or her
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, but not limited to,
technical or non-technical 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.
b. Protection of Other Confidential Information. In addition, Employee agrees
to maintain in strict confidence and, except as necessary to perform his or
her duties for the Company, not to use or disclose any Confidential
Information of the Company during his or her employment and for a period of
12 months following termination of Employee's employment. "Confidential
Information" shall mean any internal, non-public information (other than
Trade Secrets already addressed above) concerning (without limitation) the
Company's financial position and results of operations (including revenues,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods; training, educational and
administrative manuals; supplier information and purchase histories;
customers or clients; personnel and salary information; and employee lists.
Employee agrees that the provisions of this subsection shall be deemed
sufficient to protect Confidential Information of third parties provided to
the Company under an obligation of secrecy.
c. Rights to Work Product. Except as expressly provided in this Agreement, the
Company alone shall be entitled to all benefits, profits and results
arising from or incidental to Employee's performance of his or her job
duties to the Company. To the greatest extent possible, any work product,
property, data, invention, "know-how", documentation or information or
materials prepared, conceived, discovered, developed or created by Employee
in connection with performing his or her employment responsibilities during
Employee's employment with the Company shall be deemed to be "work made for
hire" as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as
amended, and owned exclusively and perpetually by the Company. Employee
hereby unconditionally and irrevocably transfers and assigns to the Company
all intellectual property or other rights, title and interest Employee may
currently have (or in the future may have) by operation of law or otherwise
in or to any work product. Employee agrees to execute and deliver to the
Company any transfers, assignments, documents or other instruments which
the Company may deem necessary or appropriate to vest complete and
perpetual title and ownership of any work product and all associated rights
exclusively in the Company. The Company shall have the right to adapt,
change, revise, delete from, add to and/or rearrange the work product or
any part thereof written or created by Employee, and to combine the same
with other works to any extent, and to change or substitute the title
thereof, and in this connection Employee hereby waives the "moral rights"
of authors as that term is commonly understood throughout the world
including, without limitation, any similar rights or principles of law
which Employee may now or later have by virtue of the law of any locality,
state, nation, treaty, convention or other source. Unless otherwise
specifically agreed, Employee shall not be entitled to any additional
compensation, beyond his or her salary, for any exercise by the Company of
its rights set forth in the preceding sentence.
d. Return of Materials. Employee shall surrender to the Company, promptly upon
its request and in any event upon termination of Employee's employment, all
media, documents, notebooks, computer programs, handbooks, data files,
models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in
the Employee's possession or control, including all copies thereof,
relating to the Company, its business, or its customers. Upon the request
of the Company, employee shall certify in writing compliance with the
foregoing requirement.
11. Severability.
It is the intention of the parties that if any of the restrictions or covenants
contained herein is held to cover a geographic area or to be for a length of
time or to apply to business activities which is not permitted by applicable
law, or in any way construed to be too broad or to any extent invalid, such
provision shall not be construed to be null, void and of no effect, but to the
extent such provision would be valid or enforceable under applicable law, a
court of competent jurisdiction shall construe and interpret or reform this
Section to provide for a covenant having the maximum enforceable geographic
area, time period and any other provisions (not greater than those contained
herein) as shall be valid and as shall be valid and enforceable under such
applicable law.
If any provision contained in this Section shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Section, but this
Section shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
12. Waiver of Provisions
Failure of either party to insist, in one or more instances, on performance by
the other in strict accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right granted hereunder or
of the future performance of any such term or condition or of any other term of
condition of this Agreement, unless such waiver's contained in a writing signed
by the party against whom the waiver or relinquishment is sought to be enforced.
13. Notices
Any notice or other communication to a party required or permitted hereunder
shall be in a writing and shall be deemed sufficiently given when received by
the party (regardless of the method of delivery), or if sent by registered or
certified mail, postage and fees prepaid, addressed to the party as follows, on
the third business day after mailing:
(a) If to Employer: 3130 Gateway Drive Norcross, GA 30091
(b) If to Employee: 1350 Treebrook Court Roswell, Ga. 30075
or in each case to such other address as the party may time to time designate in
writing to the other party.
14. Governing Law
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia.
15. Enforcement.
In the event of any breach or threatened breach by Employee of any covenant
contained in Sections 9 or 10 hereof, the resulting injuries to the Company
would be difficult or impossible to estimate accurately, even though irreparable
injury or damages would certainly result. Accordingly, an award of legal
damages, if without other relief, would be inadequate to protect the Company.
Employee, therefore, agrees that in the event of any such breach, the Company
shall be entitled to obtain from a court of competent jurisdiction an injunction
to restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief. Should
the Company have cause to seek such relief, no bond shall be required from the
Company, and Employee shall pay all attorney's fees and court costs which the
Company may incur to the extent the Company prevails in its enforcement action.
16. Entire Agreement; Modification and Amendment
This Agreement contains the sole and entire agreement between the parties and
supersedes all prior discussions and agreements between the parties with respect
to the matters addressed herein, and any such prior agreement shall, from and
after the date hereof, be null and void. This Agreement and the attached
Schedules shall not be modified or amended except by an instrument in writing
signed by the parties hereto.
17. Parties Benefited.
This Agreement shall insure to the benefit of, and be binding upon, Employee,
his heirs, executors and administrators, and Employer, its subsidiaries,
affiliates, and successors.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first mentioned above.
IMMUCOR, INC. EMPLOYEE
By: /s/ Edward L. Gallup By: /s/ Ralph A. Eatz
Edward L. Gallup, President
SCHEDULE A
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
RALPH A. EATZ.
Base compensation: $205,041.00 a year payable in 26 installments every two
weeks.
Outplacement Assistance Benefit: $30,000.00.
Automobile Allowance: $9,600.00 a year payable in 12 monthly installments.
Immucor, Inc. Employee
By: /s/ Edward L. Gallup By: /s/ Ralph A. Eatz
Edward L. Gallup, President
Date: October 13, 1998 Date: October 13, 1998
(This Schedule A supersedes and replaces any Schedule A previously executed by
the parties hereto.)
SCHEDULE B
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
RALPH A. EATZ.
Life Insurance for the Benefit of Employer:
Insured:
Face Amount: $
Owner of Policy: Employer
Policy Number:
Insurance Company:
Life Insurance for the Benefit of Employee:
Insured: Ralph A. Eatz
Face Amount: $1,158,724.59
Owner of Policy: Employee
Policy Number: 2,356,487
Insurance Company: Phoenix Home Life Mutual Insurance Company
Immucor, Inc. Employee
By: /s/ Edward L. Gallup By: /s/ Ralph A. Eatz
Edward L. Gallup, President
Date: October 13, 1998 Date: October 13, 1998
(This Schedule B supersedes and replaces any Schedule B previously executed by
the parties hereto.)
Exhibit 10.13
SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of this 13th day of October,
1998, by and between Immucor, Inc., a Georgia corporation with its executive
offices at 3130 Gateway Drive, Norcross, Georgia 30091 (herein referred to as
the "Company"), and Dr. Giochchino De Chirico, currently residing at Residenza
Aceri 332 Basiglio Milano3 Italy (herein referred to as "Executive").
WITNESSETH
WHEREAS, the Company's subsidiary Immucor Italia, S.r.l. (the "Italian
Subsidiary") and Executive are party to that certain Managing Director Agreement
entered into as of December 31, 1993 (the "Managing Director Agreement") and
that certain Private Agreement entered into as of December 31, 1993 (the
"Private Agreement"); and
WHEREAS, the Company's subsidiary Immucor GmbH (the "German
Subsidiary") and Executive are party to that certain Consulting Agreement
entered into as of December 31, 1993 (the "Consulting Agreement"); and
WHEREAS, the Company and Executive are party to that certain Consulting
Agreement entered into as of April 1, 1997 (the "Consulting Agreement"); and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
for the Company to agree to provide benefits under the circumstances described
below to Executive and other executives who are responsible for the
policy-making functions of the Company and the overall viability of the
Company's business; and
WHEREAS, the Board recognizes that the possibility of a change of
control of the Company is unsettling to such executives and wishes to make
arrangements at this time to assure their continuing dedication to their duties
to the Company and its subsidiaries and shareholders notwithstanding attempts by
outside parties to gain control of the Company; and
WHEREAS, the Board believes it important, since the Company may receive
proposals from such outside parties, to enable such executives, without being
distracted by the uncertainties of their own employment situations, to perform
their regular duties and where appropriate to assess such proposals and advise
the Board as to the best interest of the Company and it shareholders and to take
such other action as the Board determines to be appropriate; and
WHEREAS, the Board also wishes to demonstrate to the Executive that the
Company is concerned with their welfare and intends to assure that loyal
executives are treated fairly.
WHEREAS, the parties intend to supplement the Managing Director
Agreement, the Private Agreement, and the Consulting Agreement with this
Severance Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereby agree as follows:
1. Sale or Change of Control of the Company's Business. The following events
shall be deemed a "Change of Control":
a. Sale of the Company'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.
b. Sale of the Company'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.
c. 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.
d. Other Changes in Control. The occurrence of any change in control of the
Company within the meaning of United States federal securities law.
2. Severance.
a. If, within 60 days after a Change of Control the Executive voluntarily
terminates his engagement with the Company or the Company's subsidiaries
under any of the Managing Director Agreement, the Private Agreement, or the
Consulting Agreement, or if within two years after a Change of Control any
of the Company's subsidiaries terminates Executive's engagement under the
Managing Director Agreement, the Private Agreement, and the Consulting
Agreement other than for Cause as Cause is defined in such agreements, then
Executive shall be entitled to an amount equal to five times the 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,
Executive agrees to remain bound by the provisions of this agreement and
the Managing Director Agreement, the Private Agreement, and the Consulting
Agreement which specifically relate to periods, activities or obligations
upon or subsequent to the termination of the Managing Director Agreement,
the Private Agreement, and the Consulting Agreement.
b. Upon a Change of Control, Executive's existing options under the Company's
1990 Stock Option Plan, the Company's 1995 Stock Option Plan, and the
Company's 1998 Stock Option Plan, if any, shall immediately vest and become
exercisable in full and shall remain exercisable for the full term stated
in such option plan or in any stock option agreement between the Immucor
Inc. and the Executive.
c. The Company shall promptly reimburse Executive for any and all legal fees
and expenses incurred by him to enforce the provisions of this Agreement.
d. If, within 60 days after a Change of Control, either the Employee
voluntarily terminates his employment with the Employer or the Employer
terminates Employee's employment other than for Cause, then Employer shall
pay to Employee an outplacement assistance benefit of $30,000 for the
purpose of assisting Employee with counseling, travel and other expenses
related to finding new employment. Such amount shall be paid in cash at the
time of termination.
e. For purposes of this Section, "Average Annual Compensation" shall mean the
Employee's then current annual base compensation payable to Employee
together with his Average Bonus. "Average Bonus" shall mean the average of
the bonuses paid to Employee over the last two years (or such lesser number
of years in which Employee was eligible to receive a bonus) in which the
Employee was eligible to receive a bonus.
f. This Agreement is intended to provide benefits to Executive upon a Change a
Control only to the extent that such benefits are not already provided
under applicable law or applicable provisions of the Managing Director
Agreement, the Private Agreement, and the Consulting Agreement. The Italian
Subsidiary or the German Subsidiary or both, as applicable, shall pay the
Executive the amounts, if any, due under such terminated agreement or
agreements upon a Change of Control, and the Company shall pay only the
amounts described in this Section 2 to the extent such amounts exceed the
amounts, if any, due under such agreements or applicable law. Upon payment
of the amounts and performance of the obligations described in this Section
2, whether by the Company or its subsidiaries, neither the Company nor any
of its subsidiaries shall have any further obligation to Executive under
this Agreement or otherwise, including but not limited to any obligation
Section 2 of the Private Agreement or Section 5 of the Consulting
Agreement.
3. Prohibited Practices.
During the term of Executive's employment hereunder, for a period of two years
after such employment is terminated for any reason, in consideration of the
compensation being paid to Executive hereunder, Executive shall:
(a) not solicit business from anyone who is or becomes an active or prospective
customer of Company or its affiliates and with whom the Executive had dealt
with or had material contact during his term of employment under this
Agreement.
(b) not solicit for employment or hire any employee of Company or its
affiliates that the Executive had contact with during his term of
employment under this Agreement.
4. Non-Disclosure.
a. Protection of Trade Secrets. Executive acknowledges that during the course
of his or her employment, Executive will have significant access to, and
involvement with, the Company's Trade Secrets and Confidential Information.
Executive agrees to maintain in strict confidence and, except as necessary
to perform his or her duties for the Company, Executive agrees not to use
or disclose any Trade Secrets of the Company during or after his or her
employment. Executive 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, but not
limited to, technical or non-technical 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.
b. Protection of Other Confidential Information. In addition, Executive agrees
to maintain in strict confidence and, except as necessary to perform his or
her duties for the Company, not to use or disclose any Confidential
Information of the Company during his or her employment and for a period of
12 months following termination of Executive's employment. "Confidential
Information" shall mean any internal, non-public information (other than
Trade Secrets already addressed above) concerning (without limitation) the
Company's financial position and results of operations (including revenues,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods; training, educational and
administrative manuals; supplier information and purchase histories;
customers or clients; personnel and salary information; and employee lists.
Executive agrees that the provisions of this subsection shall be deemed
sufficient to protect Confidential Information of third parties provided to
the Company under an obligation of secrecy.
c. Rights to Work Product. Except as expressly provided in this Agreement, the
Company alone shall be entitled to all benefits, profits and results
arising from or incidental to Executive's performance of his or her job
duties to the Company. To the greatest extent possible, any work product,
property, data, invention, "know-how", documentation or information or
materials prepared, conceived, discovered, developed or created by
Executive in connection with performing his or her employment
responsibilities during Executive's employment with the Company shall be
deemed to be "work made for hire" as defined in the Copyright Act, 17
U.S.C.A. ss. 101 et seq., as amended, and owned exclusively and perpetually
by the Company. Executive hereby unconditionally and irrevocably transfers
and assigns to the Company all intellectual property or other rights, title
and interest Executive may currently have (or in the future may have) by
operation of law or otherwise in or to any work product. Executive agrees
to execute and deliver to the Company any transfers, assignments, documents
or other instruments which the Company may deem necessary or appropriate to
vest complete and perpetual title and ownership of any work product and all
associated rights exclusively in the Company. The Company shall have the
right to adapt, change, revise, delete from, add to and/or rearrange the
work product or any part thereof written or created by Executive, and to
combine the same with other works to any extent, and to change or
substitute the title thereof, and in this connection Executive hereby
waives the "moral rights" of authors as that term is commonly understood
throughout the world including, without limitation, any similar rights or
principles of law which Executive may now or later have by virtue of the
law of any locality, state, nation, treaty, convention or other source.
Unless otherwise specifically agreed, Executive shall not be entitled to
any additional compensation, beyond his or her salary, for any exercise by
the Company of its rights set forth in the preceding sentence.
d. Return of Materials. Executive shall surrender to the Company, promptly
upon its request and in any event upon termination of Executive's
employment, all media, documents, notebooks, computer programs, handbooks,
data files, models, samples, price lists, drawings, customer lists,
prospect data, or other material of any nature whatsoever (in tangible or
electronic form) in the Executive's possession or control, including all
copies thereof, relating to the Company, its business, or its customers.
Upon the request of the Company, employee shall certify in writing
compliance with the foregoing requirement.
5. Severability.
It is the intention of the parties that if any of the restrictions or covenants
contained herein is held to cover a geographic area or to be for a length of
time or to apply to business activities which is not permitted by applicable
law, or in any way construed to be too broad or to any extent invalid, such
provision shall not be construed to be null, void and of no effect, but to the
extent such provision would be valid or enforceable under applicable law, a
court of competent jurisdiction shall construe and interpret or reform this
Section to provide for a covenant having the maximum enforceable geographic
area, time period and any other provisions (not greater than those contained
herein) as shall be valid and as shall be valid and enforceable under such
applicable law.
If any provision contained in this Section shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Section, but this
Section shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
6. Waiver of Provisions
Failure of either party to insist, in one or more instances, on performance by
the other in strict accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right granted hereunder or
of the future performance of any such term or condition or of any other term of
condition of this Agreement, unless such waiver's contained in a writing signed
by the party against whom the waiver or relinquishment is sought to be enforced.
7. Notices.
Any notice or other communication to a party required or permitted hereunder
shall be in a writing and shall be deemed sufficiently given when received by
the party (regardless of the method of delivery), or if sent by registered or
certified mail, postage and fees prepaid, addressed to the party as follows, on
the third business day after mailing:
(a) If to the Company: 3130 Gateway Drive Norcross, GA 30091
(b) If to Executive: Residenza Aceri 332 Basiglio (MI) 20080 Italy
or in each case to such other address as the party may time to time designate in
writing to the other party.
8. Enforcement.
In the event of any breach or threatened breach by Executive of any covenant
contained in Sections 3 or 4 hereof, the resulting injuries to the Company would
be difficult or impossible to estimate accurately, even though irreparable
injury or damages would certainly result. Accordingly, an award of legal
damages, if without other relief, would be inadequate to protect the Company.
Executive, therefore, agrees that in the event of any such breach, the Company
shall be entitled to obtain from a court of competent jurisdiction an injunction
to restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief. Should
the Company have cause to seek such relief, no bond shall be required from the
Company, and Executive shall pay all attorney's fees and court costs which the
Company may incur to the extent the Company prevails in its enforcement action.
9. Governing Law
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia.
10. Modification and Amendment
This Agreement contains the sole and entire agreement between the parties and
supersedes all prior discussions and agreements between the parties with respect
to the matters addressed herein, and any such prior agreement shall, from and
after the date hereof, be null and void. This Agreement and the attached
Schedules shall not be modified or amended except by an instrument in writing
signed by the parties hereto.
11. Parties Benefited
This Agreement shall insure to the benefit of, and be binding upon, Executive,
his heirs, executors and administrators, and the Company, its subsidiaries,
affiliates, and successors.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first mentioned above.
IMMUCOR, INC. EXECUTIVE
By: /s/ Edward L. Gallup By: /s/ Dr. Giochchino De Chirico
Edward L. Gallup, President Dr. Giochchino De Chirico
Exhibit 10.20
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this 13th day of October,
1998, by and between Immucor, Inc., a Georgia corporation with its executive
offices at 3130 Gateway Drive, Norcross, Georgia 30091 (herein referred to as
"Employer" or the "Company"), and Steven C. Ramsey, residing at 5710 Chestatee
Landing Dr., Gainesville, Georgia 30506 (herein referred to as "Employee").
WITNESSETH
WHEREAS, the parties hereto desire to enter into an agreement for
Employer's employment of Employee on the terms and conditions hereinafter
states.
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-Chief Financial Officer of
Employer to perform the services and duties normally and customarily associated
with Employee's position, such duties as specified in the Employer's bylaws, and
such other duties as may from time to time be specified by the Employer's Board
of Directors. Employee will be retained in this position during the term of his
employment under this Employment Agreement, and hereby agrees to perform such
services and duties in this 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 best
efforts to promote the success of the Employer's business.
3. Term of Employment
Employee's employment hereunder shall commence on October 13, 1998 (hereinafter
called the "Effective Date," and shall continue for a period of twelve (12)
months, 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 12 months during the term
hereof.
(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,
(ii) An act of defalcation committed by Employee,
(iii) Employee's continuing inability or refusal to perform
reasonable duties assigned to him hereunder (unless such
refusal occurs following the occurrence of a Change of
Control, as defined herein) or
(iv) Employee's moral turpitude.
Disability because of illness or accident or any other physical or
mental disability shall not constitute a basis for discharge for Cause.
(c) The discharge of Employee by Employer without Cause (which shall be deemed
to have occurred if Employee's employment hereunder terminates under
Section 7 hereof).
(d) At Employee's request and with the express prior written consent of
Employer.
(e) At Employee's election upon 120 days notice (or such lesser notice as
Employer may accept), without the express prior written consent of
Employer.
(f) At the end of the term of the Agreement, or any extension thereof, if the
either the Employer or Employee gives 60 days notice to the other of
non-renewal of the Agreement.
If not sooner terminated under the provisions of Sections 3(a) through 3(f)
above, the term of Employee's employment hereunder shall automatically
renew for an additional period of twelve (12) months.
4. Compensation
(a) Subject to the provisions of Section 4(d), 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. Schedule A 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.
(b) The Employee may be entitled to additional bonus compensation as may be
determined by the Board of Directors of Employer from time to time, any
such determination to be final, binding, conclusive on Employee and all
other persons.
(c) In the event Employee's employment shall terminate under Section 3(c)
hereof, the Employee shall be paid an amount equal to the Average Annual
Compensation payable to Employee under Schedule A for the remainder of the
term of this Agreement 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. For purposes of this Section, "Average Annual
Compensation" shall mean the 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 years in which the
Employee was eligible to receive a bonus or such lesser number of years in
which Employee was eligible to receive a bonus.
(d) In the event Employee's employment shall terminate under Section 3(a),
3(b), 3(d), 3(e) or 3(f) hereof, all of Employer's obligations to Employee
hereunder will cease automatically and Employee shall only be entitled to
compensation accrued through the date of termination.
5. Expenses
Employee shall be entitled to receive reimbursement for, or payment directly by
the Employer of, all reasonable expenses incurred by Employee at the request of
the Employer 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 and Other Fringe Benefits
Employer will provide Employee with (a) 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
the Employer's other employees in a similar position and with similar
responsibilities, and (b) life insurance for the benefit of the Employee and/or
the Employer, as provided on Schedule B attached hereto. Schedule B may be
amended from time to time upon the parties' revision and re-execution thereof,
whereupon the amended Schedule B shall be attached hereto; provided, however,
the amended Schedule B shall be effective upon such re-execution, whether or not
it is attached hereto.
7. Termination of Employment Upon Sale or Change of Control of Employer's
Business; Severance
(a) Notwithstanding anything to the contrary contained in this Agreement,
either Employer or Employee may terminate Employee's employment hereunder
if any of the following events occur:
(i) Sale of Employer's Assets. The sale of all or substantially
all of Employer'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 Employer's
outstanding shares of capital stock.
(iii) Merger or Consolidation. The merger or consolidation of
Employer in a transaction or series of transactions in which
Employer'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 Employer within the meaning of federal
securities law.
(b) If, within 60 days after an event described in Sections 7(a)(i), (a)(ii),
(a)(iii) or (a)(iv) (a "Change of Control"), the Employee voluntarily
terminates his employment with the Employer, or if within two years after a
Change of Control Employer terminates Employee's employment (whether for
Cause or without Cause) the Employer terminates Employee's employment, then
Employer shall pay Employee (instead of the amount specified in Section
4(c), if any, but together with the amount specified in Section 7(d), if
any) an amount equal to two times the 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) Upon a Change of Control, Employee's existing options under any Immucor
Inc. (the "Company") option plan, including the Company's 1990 Stock Option
Plan, the Company's 1995 Stock Option Plan, and the Company's 1998 Stock
Option Plan, if any, shall immediately vest and become exercisable in full
and shall remain exercisable for the full term stated in such option plan
or in any stock option agreement between the Company and the Employee.
(d) If, within 60 days after a Change of Control, either the Employee
voluntarily terminates his employment with the Employer or the Employer
terminates Employee's employment other than for Cause, 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. Schedule A 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.
(e) For purposes of this Section, "Average Annual Compensation" shall mean the
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 of the bonuses
paid to Employee over the last two years (or such lesser number of years in
which Employee was eligible to receive a bonus) in which the Employee was
eligible to receive a bonus.
8. 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.
9. Prohibited Practices.
During the term of Employee's employment hereunder, for a period of two 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 the Employee had dealt
with or had material contact during his term of employment under this
Agreement.
(b) not solicit for employment or hire any employee of Employer or its
affiliates that the Employee had contact with during his term of employment
under this Agreement.
10. Non-Disclosure.
a. Protection of Trade Secrets. Employee acknowledges that during the course
of his or her 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 or her duties for the Company, Employee agrees not to use or
disclose any Trade Secrets of the Company during or after his or her
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, but not limited to,
technical or non-technical 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.
b. Protection of Other Confidential Information. In addition, Employee agrees
to maintain in strict confidence and, except as necessary to perform his or
her duties for the Company, not to use or disclose any Confidential
Information of the Company during his or her employment and for a period of
12 months following termination of Employee's employment. "Confidential
Information" shall mean any internal, non-public information (other than
Trade Secrets already addressed above) concerning (without limitation) the
Company's financial position and results of operations (including revenues,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods; training, educational and
administrative manuals; supplier information and purchase histories;
customers or clients; personnel and salary information; and employee lists.
Employee agrees that the provisions of this subsection shall be deemed
sufficient to protect Confidential Information of third parties provided to
the Company under an obligation of secrecy.
c. Rights to Work Product. Except as expressly provided in this Agreement, the
Company alone shall be entitled to all benefits, profits and results
arising from or incidental to Employee's performance of his or her job
duties to the Company. To the greatest extent possible, any work product,
property, data, invention, "know-how", documentation or information or
materials prepared, conceived, discovered, developed or created by Employee
in connection with performing his or her employment responsibilities during
Employee's employment with the Company shall be deemed to be "work made for
hire" as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as
amended, and owned exclusively and perpetually by the Company. Employee
hereby unconditionally and irrevocably transfers and assigns to the Company
all intellectual property or other rights, title and interest Employee may
currently have (or in the future may have) by operation of law or otherwise
in or to any work product. Employee agrees to execute and deliver to the
Company any transfers, assignments, documents or other instruments which
the Company may deem necessary or appropriate to vest complete and
perpetual title and ownership of any work product and all associated rights
exclusively in the Company. The Company shall have the right to adapt,
change, revise, delete from, add to and/or rearrange the work product or
any part thereof written or created by Employee, and to combine the same
with other works to any extent, and to change or substitute the title
thereof, and in this connection Employee hereby waives the "moral rights"
of authors as that term is commonly understood throughout the world
including, without limitation, any similar rights or principles of law
which Employee may now or later have by virtue of the law of any locality,
state, nation, treaty, convention or other source. Unless otherwise
specifically agreed, Employee shall not be entitled to any additional
compensation, beyond his or her salary, for any exercise by the Company of
its rights set forth in the preceding sentence.
d. Return of Materials. Employee shall surrender to the Company, promptly upon
its request and in any event upon termination of Employee's employment, all
media, documents, notebooks, computer programs, handbooks, data files,
models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in
the Employee's possession or control, including all copies thereof,
relating to the Company, its business, or its customers. Upon the request
of the Company, employee shall certify in writing compliance with the
foregoing requirement.
11. Severability.
It is the intention of the parties that if any of the restrictions or covenants
contained herein is held to cover a geographic area or to be for a length of
time or to apply to business activities which is not permitted by applicable
law, or in any way construed to be too broad or to any extent invalid, such
provision shall not be construed to be null, void and of no effect, but to the
extent such provision would be valid or enforceable under applicable law, a
court of competent jurisdiction shall construe and interpret or reform this
Section to provide for a covenant having the maximum enforceable geographic
area, time period and any other provisions (not greater than those contained
herein) as shall be valid and as shall be valid and enforceable under such
applicable law.
If any provision contained in this Section shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Section, but this
Section shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
This agreement supercedes any prior agreement between Employer and Employee.
12. Waiver of Provisions
Failure of either party to insist, in one or more instances, on performance by
the other in strict accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right granted hereunder or
of the future performance of any such term or condition or of any other term of
condition of this Agreement, unless such waiver's contained in a writing signed
by the party against whom the waiver or relinquishment is sought to be enforced.
13. Notices
Any notice or other communication to a party required or permitted
hereunder shall be in a writing and shall be deemed sufficiently given when
received by the party (regardless of the method of delivery), or if sent by
registered or certified mail, postage and fees prepaid, addressed to the party
as follows, on the third business day after mailing:
(a) If to Employer: 3130 Gateway Drive Norcross, GA 30091
(b) If to Employee: 5710 Chestatee Landing Dr Gainesville, GA 30506
or in each case to such other address as the party may time to time
designate in writing to the other party.
14. Governing Law
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia.
15. Enforcement.
In the event of any breach or threatened breach by Employee of any covenant
contained in Sections 9 or 10 hereof, the resulting injuries to the Company
would be difficult or impossible to estimate accurately, even though irreparable
injury or damages would certainly result. Accordingly, an award of legal
damages, if without other relief, would be inadequate to protect the Company.
Employee, therefore, agrees that in the event of any such breach, the Company
shall be entitled to obtain from a court of competent jurisdiction an injunction
to restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief. Should
the Company have cause to seek such relief, no bond shall be required from the
Company, and Employee shall pay all attorney's fees and court costs which the
Company may incur to the extent the Company prevails in its enforcement action.
16. Entire Agreement; Modification and Amendment
This Agreement contains the sole and entire agreement between the parties and
supersedes all prior discussions and agreements between the parties with respect
to the matters addressed herein, and any such prior agreement shall, from and
after the date hereof, be null and void. This Agreement and the attached
Schedules shall not be modified or amended except by an instrument in writing
signed by the parties hereto.
17. Parties Benefited.
This Agreement shall insure to the benefit of, and be binding upon, Employee,
his heirs, executors and administrators, and Employer, its subsidiaries,
affiliates, and successors.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first mentioned above.
IMMUCOR, INC. EMPLOYEE
By: /s/ Edward L. Gallup By: /s/ Steven C. Ramsey
Edward L. Gallup, President
SCHEDULE A
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
STEVEN C. RAMSEY
Base compensation: $175,000.00 a year payable in 26 installments every two
weeks.
Outplacement Assistance Benefit: $15,000.00.
Immucor, Inc. Employee
By: /s/ Edward L. Gallup By: /s/ Steven C. Ramsey
Edward L. Gallup, President
Date: October 13, 1998 Date: October 13, 1998
(This Schedule A supersedes and replaces any Schedule A previously executed by
the parties hereto.)
SCHEDULE B
EMPLOYMENT AGREEMENT DATED AUGUST 1, 1998 BY AND BETWEEN IMMUCOR, INC. AND
STEVEN C. RAMSEY
Life Insurance for the Benefit of Employer: N/A
Insured:
Face Amount: $
Owner of Policy: Employer
Policy Number:
Insurance Company:
Life Insurance for the Benefit of Employee:
Insured: Premium reimbursement of $2,500.00 annually.
Face Amount: $
Owner of Policy: Employee
Policy Number:
Insurance Company:
Immucor, Inc. Employee
By: /s/ Edward L. Gallup By: /s/ Steven C. Ramsey
Edward L. Gallup, President
Date: October 13, 1998 Date: October 13, 1998
(This Schedule B supersedes and replaces any Schedule B previously executed by
the parties hereto.)
Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this 13th day of October,
1998, by and between Immucor, Inc., a Georgia corporation with its executive
offices at 3130 Gateway Drive, Norcross, Georgia 30091 (herein referred to as
"Employer" or the "Company"), and Patrick D. Waddy, residing at 10 Homecrest
Terrace Halifax, N.S.
B3N1Y4 (herein referred to as "Employee").
WITNESSETH
WHEREAS, the parties hereto desire to enter into an agreement for
Employer's employment of Employee on the terms and conditions hereinafter
states.
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 President of its Dominion Biologicals
subsidiary to perform the services and duties normally and customarily
associated with Employee's position, such duties as specified in the Employer's
bylaws, and such other duties as may from time to time be specified by the
Employer's Board of Directors. Employee will be retained in this position during
the term of his employment under this Employment Agreement, and hereby agrees to
perform such services and duties in this 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 best
efforts to promote the success of the Employer's business.
3. Term of Employment
Employee's employment hereunder shall commence on October 13, 1998 (hereinafter
called the "Effective Date," and shall continue for a period of twelve (12)
months, 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 12 months during the term
hereof.
(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,
(ii) An act of defalcation committed by Employee,
(iii) Employee's continuing inability or refusal to perform
reasonable duties assigned to him hereunder (unless such
refusal occurs following the occurrence of a Change of
Control, as defined herein) or
(iv) Employee's moral turpitude.
Disability because of illness or accident or any other physical or
mental disability shall not constitute a basis for discharge for Cause.
(c) The discharge of Employee by Employer without Cause (which shall be deemed
to have occurred if Employee's employment hereunder terminates under
Section 7 hereof).
(d) At Employee's request and with the express prior written consent of
Employer.
(e) At Employee's election upon 120 days notice (or such lesser notice as
Employer may accept), without the express prior written consent of
Employer.
(f) At the end of the term of the Agreement, or any extension thereof, if the
either the Employer or Employee gives 60 days notice to the other of
non-renewal of the Agreement.
If not sooner terminated under the provisions of Sections 3(a) through 3(f)
above, the term of Employee's employment hereunder shall automatically
renew for an additional period of twelve (12) months.
4. Compensation
(a) Subject to the provisions of Section 4(d), 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. Schedule A 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.
(b) The Employee may be entitled to additional bonus compensation as may be
determined by the Board of Directors of Employer from time to time, any
such determination to be final, binding, conclusive on Employee and all
other persons.
(c) In the event Employee's employment shall terminate under Section 3(c)
hereof, the Employee shall be paid an amount equal to the Average Annual
Compensation payable to Employee under Schedule A for the remainder of the
term of this Agreement 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. For purposes of this Section, "Average Annual
Compensation" shall mean the 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 years in which the
Employee was eligible to receive a bonus or such lesser number of years in
which Employee was eligible to receive a bonus.
(d) In the event Employee's employment shall terminate under Section 3(a),
3(b), 3(d), 3(e) or 3(f) hereof, all of Employer's obligations to Employee
hereunder will cease automatically and Employee shall only be entitled to
compensation accrued through the date of termination.
5. Expenses
Employee shall be entitled to receive reimbursement for, or payment directly by
the Employer of, all reasonable expenses incurred by Employee at the request of
the Employer 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 and Other Fringe Benefits
Employer will provide Employee with (a) 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
the Employer's other employees in a similar position and with similar
responsibilities, and (b) life insurance for the benefit of the Employee and/or
the Employer, as provided on Schedule B attached hereto. Schedule B may be
amended from time to time upon the parties' revision and re-execution thereof,
whereupon the amended Schedule B shall be attached hereto; provided, however,
the amended Schedule B shall be effective upon such re-execution, whether or not
it is attached hereto.
7. Termination of Employment Upon Sale or Change of Control of Employer's
Business; Severance
(a) Notwithstanding anything to the contrary contained in this Agreement,
either Employer or Employee may terminate Employee's employment hereunder
if any of the following events occur:
(i) Sale of Employer's Assets. The sale of all or substantially
all of Employer'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 Employer's
outstanding shares of capital stock.
(iii) Merger or Consolidation. The merger or consolidation of
Employer in a transaction or series of transactions in which
Employer'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 Employer within the meaning of federal
securities law.
(b) If, within 60 days after an event described in Sections 7(a)(i), (a)(ii),
(a)(iii) or (a)(iv) (a "Change of Control"), the Employee voluntarily
terminates his employment with the Employer, or if within two years after a
Change of Control Employer terminates Employee's employment (whether for
Cause or without Cause) the Employer terminates Employee's employment, then
Employer shall pay Employee (instead of the amount specified in Section
4(c), if any, but together with the amount specified in Section 7(d), if
any) an amount equal to two times the 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) Upon a Change of Control, Employee's existing options under any Immucor
Inc. (the "Company") option plan, including the Company's 1990 Stock Option
Plan, the Company's 1995 Stock Option Plan, and the Company's 1998 Stock
Option Plan, if any, shall immediately vest and become exercisable in full
and shall remain exercisable for the full term stated in such option plan
or in any stock option agreement between the Company and the Employee.
(d) If, within 60 days after a Change of Control, either the Employee
voluntarily terminates his employment with the Employer or the Employer
terminates Employee's employment other than for Cause, 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. Schedule A 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.
(e) For purposes of this Section, "Average Annual Compensation" shall mean the
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 of the bonuses
paid to Employee over the last two years (or such lesser number of years in
which Employee was eligible to receive a bonus) in which the Employee was
eligible to receive a bonus.
8. 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.
9. Prohibited Practices.
During the term of Employee's employment hereunder, for a period of two 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 the Employee had dealt
with or had material contact during his term of employment under this
Agreement.
(b) not solicit for employment or hire any employee of Employer or its
affiliates that the Employee had contact with during his term of employment
under this Agreement.
10. Non-Disclosure.
a. Protection of Trade Secrets. Employee acknowledges that during the course
of his or her 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 or her duties for the Company, Employee agrees not to use or
disclose any Trade Secrets of the Company during or after his or her
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, but not limited to,
technical or non-technical 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.
b. Protection of Other Confidential Information. In addition, Employee agrees
to maintain in strict confidence and, except as necessary to perform his or
her duties for the Company, not to use or disclose any Confidential
Information of the Company during his or her employment and for a period of
12 months following termination of Employee's employment. "Confidential
Information" shall mean any internal, non-public information (other than
Trade Secrets already addressed above) concerning (without limitation) the
Company's financial position and results of operations (including revenues,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods; training, educational and
administrative manuals; supplier information and purchase histories;
customers or clients; personnel and salary information; and employee lists.
Employee agrees that the provisions of this subsection shall be deemed
sufficient to protect Confidential Information of third parties provided to
the Company under an obligation of secrecy.
c. Rights to Work Product. Except as expressly provided in this Agreement, the
Company alone shall be entitled to all benefits, profits and results
arising from or incidental to Employee's performance of his or her job
duties to the Company. To the greatest extent possible, any work product,
property, data, invention, "know-how", documentation or information or
materials prepared, conceived, discovered, developed or created by Employee
in connection with performing his or her employment responsibilities during
Employee's employment with the Company shall be deemed to be "work made for
hire" as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as
amended, and owned exclusively and perpetually by the Company. Employee
hereby unconditionally and irrevocably transfers and assigns to the Company
all intellectual property or other rights, title and interest Employee may
currently have (or in the future may have) by operation of law or otherwise
in or to any work product. Employee agrees to execute and deliver to the
Company any transfers, assignments, documents or other instruments which
the Company may deem necessary or appropriate to vest complete and
perpetual title and ownership of any work product and all associated rights
exclusively in the Company. The Company shall have the right to adapt,
change, revise, delete from, add to and/or rearrange the work product or
any part thereof written or created by Employee, and to combine the same
with other works to any extent, and to change or substitute the title
thereof, and in this connection Employee hereby waives the "moral rights"
of authors as that term is commonly understood throughout the world
including, without limitation, any similar rights or principles of law
which Employee may now or later have by virtue of the law of any locality,
state, nation, treaty, convention or other source. Unless otherwise
specifically agreed, Employee shall not be entitled to any additional
compensation, beyond his or her salary, for any exercise by the Company of
its rights set forth in the preceding sentence.
d. Return of Materials. Employee shall surrender to the Company, promptly upon
its request and in any event upon termination of Employee's employment, all
media, documents, notebooks, computer programs, handbooks, data files,
models, samples, price lists, drawings, customer lists, prospect data, or
other material of any nature whatsoever (in tangible or electronic form) in
the Employee's possession or control, including all copies thereof,
relating to the Company, its business, or its customers. Upon the request
of the Company, employee shall certify in writing compliance with the
foregoing requirement.
11. Severability.
It is the intention of the parties that if any of the restrictions or covenants
contained herein is held to cover a geographic area or to be for a length of
time or to apply to business activities which is not permitted by applicable
law, or in any way construed to be too broad or to any extent invalid, such
provision shall not be construed to be null, void and of no effect, but to the
extent such provision would be valid or enforceable under applicable law, a
court of competent jurisdiction shall construe and interpret or reform this
Section to provide for a covenant having the maximum enforceable geographic
area, time period and any other provisions (not greater than those contained
herein) as shall be valid and as shall be valid and enforceable under such
applicable law.
If any provision contained in this Section shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Section, but this
Section shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
This agreement supercedes any prior employment agreement between Employer and
Employee.
12. Waiver of Provisions
Failure of either party to insist, in one or more instances, on performance by
the other in strict accordance with the terms and conditions of this Agreement
shall not be deemed a waiver or relinquishment of any right granted hereunder or
of the future performance of any such term or condition or of any other term of
condition of this Agreement, unless such waiver's contained in a writing signed
by the party against whom the waiver or relinquishment is sought to be enforced.
13. Notices
Any notice or other communication to a party required or permitted hereunder
shall be in a writing and shall be deemed sufficiently given when received by
the party (regardless of the method of delivery), or if sent by registered or
certified mail, postage and fees prepaid, addressed to the party as follows, on
the third business day after mailing:
(a) If to Employer: 3130 Gateway Drive Norcross, GA 30091
(b) If to Employee: 10 Homecrest Terrace Halifax, NS B3N1Y4
or in each case to such other address as the party may time to time designate in
writing to the other party.
14. Governing Law
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia.
15. Enforcement.
In the event of any breach or threatened breach by Employee of any covenant
contained in Sections 9 or 10 hereof, the resulting injuries to the Company
would be difficult or impossible to estimate accurately, even though irreparable
injury or damages would certainly result. Accordingly, an award of legal
damages, if without other relief, would be inadequate to protect the Company.
Employee, therefore, agrees that in the event of any such breach, the Company
shall be entitled to obtain from a court of competent jurisdiction an injunction
to restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief. Should
the Company have cause to seek such relief, no bond shall be required from the
Company, and Employee shall pay all attorney's fees and court costs which the
Company may incur to the extent the Company prevails in its enforcement action.
16. Entire Agreement; Modification and Amendment
This Agreement contains the sole and entire agreement between the parties and
supersedes all prior discussions and agreements between the parties with respect
to the matters addressed herein, and any such prior agreement shall, from and
after the date hereof, be null and void. This Agreement and the attached
Schedules shall not be modified or amended except by an instrument in writing
signed by the parties hereto.
17. Parties Benefited.
This Agreement shall insure to the benefit of, and be binding upon, Employee,
his heirs, executors and administrators, and Employer, its subsidiaries,
affiliates, and successors.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first mentioned above.
IMMUCOR, INC. EMPLOYEE
By: /s/ Edward L. Gallup By: /s/ Patrick D. Waddy
Edward L. Gallup, President
SCHEDULE A
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
PATRICK D. WADDY
Base compensation: CDN$100,000.00 a year payable in 24 installments
semi-monthly.
Outplacement Assistance Benefit: US$15,000.00.
Immucor, Inc. Employee
By: /s/ Edward L. Gallup By: /s/ Patrick D. Waddy
Edward L. Gallup, President
Date: October 13, 1998 Date: October 13, 1998
(This Schedule A supersedes and replaces any Schedule A previously executed by
the parties hereto.)
SCHEDULE B
EMPLOYMENT AGREEMENT DATED OCTOBER 13, 1998 BY AND BETWEEN IMMUCOR, INC. AND
PATRICK D. WADDY
Life Insurance for the Benefit of Employer: N/A
Insured:
Face Amount: $
Owner of Policy: Employer
Policy Number:
Insurance Company:
Life Insurance for the Benefit of Employee:
Insured: Premium reimbursement of US$2,500.00 annually.
Face Amount: $
Owner of Policy: Employee
Policy Number:
Insurance Company:
Immucor, Inc. Employee
By: /s/ Edward L. Gallup By: /s/ Patrick D. Waddy
Edward L. Gallup, President
Date: October 13, 1998 Date: October 13, 1998
(This Schedule B supersedes and replaces any Schedule B previously executed by
the parties hereto.)
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000736822-99-000029 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., May 1, 10:59:11.1am ET 
