Exhibit 10.1


 


EMPLOYMENT
AGREEMENT


 


 


THIS AGREEMENT (the “Agreement”)
is made and entered into by and between Immucor, Inc., a Georgia corporation
with its executive offices at 3130 Gateway Drive, Norcross, Georgia 30071
(herein referred to as “Employer” or
the “Company”), and Richard A. Flynt,
residing at 12180 Oak Hollow Way, Alpharetta, Georgia 30005 (herein referred to
as “Employee”).


 


WHEREAS, the parties hereto desire to enter into an
agreement for Employer’s employment of Employee on the terms and conditions
hereinafter stated.


 


NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements herein contained, the parties hereby agree
as follows:


 


1.                                       Relationship Established


Employer hereby employs
Employee as Vice President and Chief Financial Officer of the Company to
perform the services and duties normally and customarily associated with
Employee’s position, such duties as may be specified in the Company’s bylaws,
and such other duties as may from time to time be specified by the Company’s
Chief Executive Officer (the “CEO”) and its
Board of Directors (the “Board”).  Employee will be retained in such position
during the term of his employment under this Agreement, and Employee hereby
agrees to perform such services and duties in such capacity.


2.                                       Extent of Services


Employee shall devote
substantially all his business time, attention, skill and efforts to the
performance of his duties hereunder, and shall use his best efforts to promote
the success of the Company’s business.  Employer
recognizes that Employee has agreed to employment at the Company’s offices
located in Norcross, Georgia.  Should the
Company’s executive offices be relocated to, or if Employer otherwise shall
require that Employee work at, a place greater than fifty (50) 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 December 10, 2007 (hereinafter called the “Effective Date”) and shall continue for a period of two (2)
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 twelve (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 this Agreement,
or any extension thereof, if either the Employer or Employee gives 60 days
notice to the other of non-renewal of this 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 two (2) years at each
annual anniversary date of this Agreement.


 


4.                                       Compensation; Stock Option Award


(a)                                  Subject to the provisions of Section
4(e), Employer will pay to Employee as base compensation for the services to be
performed by him hereunder the base compensation specified on Schedule A
attached hereto.


(b)                                 Employee may be entitled to additional
bonus compensation as may be determined by the Board from time to time, any
such determination to be final, binding and conclusive on Employee and all
other persons.  Without limiting the
preceding sentence, Employee shall be eligible to participate in the Company’s
FY 2008 Bonus Plan as if he had been employed by the Company as its CFO since
June 1, 2007, and Employee will be eligible to participate as an executive
officer in the Company’s FY 2009 Bonus Plan and FY 2009 Long-Term Incentive
Awards Plan in the form in which it is adopted, when it is adopted, assuming he
remains the Company’s Chief Financial Officer at that time.


(c)                                  In the event Employee’s employment shall
terminate under Section 3(c) hereof (discharge without Cause), 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 


 


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                                                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 Employee’s annual base compensation payable
to Employee under Schedule A in accordance with the payment schedule set
forth on Schedule A, together with his Average Bonus. “Average Bonus” shall mean the average bonus paid to Employee
over the last two (2) years in which Employee was eligible to receive a bonus
or such lesser number of years in which Employee was eligible to receive a
bonus.  If the termination occurs before
Employee becomes eligible to receive a bonus, then “Average Bonus” shall be
deemed to be a pro rata portion of the average bonus paid to the Company’s CEO
over the last two (2) years in which he was eligible to receive a bonus, such
proration to be based on the differences in their respective base compensation.


(d)                                 As long as Employee is employed
hereunder, Employer will provide Employee an automobile allowance as specified
on Schedule A attached hereto.


(e)                                  In the event Employee’s employment shall
terminate under Section 3(a), 3(b), 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.


(f)                                    As of the Effective Date, Employee shall
be issued options to acquire 15,000 shares of the Company’s common stock, $0.10
per value per share, pursuant to the Company’s 2005 Long-Term Incentive Plan.


(g)                                 Schedule A attached hereto may be amended from time to time upon
the parties’ revision and re-execution thereof, whereupon the amended Schedule
A shall be attached hereto; provided, however, the amended Schedule A
shall be effective upon such re-execution, whether or not it is attached
hereto.


5.                                       Expenses


Employee shall be
entitled to receive reimbursement for, or payment directly by Employer of, all
reasonable expenses incurred by Employee 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 (a) provide
Employee with health insurance, dental insurance, long-term disability
insurance, paid vacations and other fringe benefits in the form and in dollar
amounts substantially equivalent to the benefits provided to its other
executive officers of the Company, and (b) reimburse Employee up to $2,500 per
year for the cost of life insurance on his life upon presentation of an
appropriate written request therefor. 
Without limiting the preceding sentence, Employee will be entitled 27
days paid vacation (adjusted for additional years of service after the
Effective Date), to be taken in accordance with Employer’s standard vacation
policy, except that vacation days will begin to accrue on the Effective Date
without regard to the 90-day waiting period stated in that policy.


 


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7.                                       Termination of Employment Upon Sale or
Change of Control; 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 (each such event
being referred to as a “Change of Control”):


(i)                                     Sale of Employer’s Assets. 
The sale of all or substantially all of the Company’s assets to a single
purchaser or group of associated purchasers, whether in a single transaction or
a series of related transactions.


(ii)                                  Sale of Employer’s Shares. 
The sale, exchange, or other disposition, in one transaction, or in a
series of related transactions, of twenty percent (20%) or more of the Company’s
outstanding shares of capital stock.


(iii)                               Merger or Consolidation. 
The merger or consolidation of the Company in a transaction or series of
transactions in which the Company’s shareholders receive or retain less than
fifty percent (50%) of the outstanding voting shares of the new or surviving
corporation.


(iv)                              Other Changes in Control. 
The occurrence of any change in control of the Company within the
meaning of federal securities law.


(b)                                 If, within sixty (60) days after a Change
of Control, Employee voluntarily terminates his employment with the Employer,
or if within two (2) years after a Change of Control Employer terminates
Employee’s employment (whether for Cause or without Cause), then Employer shall
pay Employee (instead of the amount specified in Section 4(c) but together with
the amount specified in Section 7(d)) an amount equal to two (2) times Employee’s
Average Annual Compensation (as defined below), to be paid in a single payment
at the time of termination. In consideration of such payment and his employment
hereunder through the date of such termination, Employee agrees to remain bound
by the provisions of this Agreement which specifically relate to periods,
activities or obligations upon or subsequent to the termination of Employee’s
employment.


(c)                                  Upon a Change of Control, (i) the
restrictions on any and all outstanding incentive awards granted to Employee
(including, without limitation, restricted stock and granted performance shares
or units) under any incentive plan or arrangement shall lapse and such
incentive award shall become 100% vested, and (ii) any and all stock options
and stock appreciation rights issued to Employee shall become immediately
exercisable and shall become 100% vested.


(d)                                 If, within sixty (60) days after a Change
of Control, either Employee voluntarily terminates his employment with Employer
or 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.


 


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(e)                                  For purposes of this Section, “Average Annual Compensation” shall mean Employee’s annual
base compensation payable to Employee under Schedule A in accordance
with the payment schedule set forth on Schedule A, together with his
Average Bonus.  “Average
Bonus” shall mean the average 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 Employee was eligible to receive a
bonus.  If the termination occurs before
Employee becomes eligible to receive a bonus, then “Average Bonus” shall be
deemed to be a pro rata portion of the average bonus paid to the Company’s CEO
over the last two (2) years in which he was eligible to receive a bonus, such
proration to be based on the differences in their respective base compensation.


(f)                                    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.                                       Reimbursement of Legal Fees


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, and for a period of two (2) years after such
employment is terminated for any reason, in consideration of the compensation
being paid to Employee hereunder, Employee shall:


 


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(a)                                   not solicit business from anyone who is
or becomes an active or prospective customer of Employer or its affiliates and
with whom Employee had dealt with or had material contact during his term of
employment under this Agreement, if the purpose of the solicitation is to
induce such active or prospective customer to purchase products from another
company that are substantially similar to the Company’s products; and


(b)                                 not solicit for employment or hire any
employee of Employer or its affiliates that 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 employment, Employee will have significant access to, and involvement
with, the Company’s Trade Secrets and Confidential Information.  Employee agrees to maintain in strict
confidence and, except as necessary to perform his duties for the Company,
Employee agrees not to use or disclose any Trade Secrets of the Company during
or after his employment.  Employee agrees
that the provisions of this subsection shall be deemed sufficient to protect
Trade Secrets of third parties provided to the Company under an obligation of
secrecy. As provided by Georgia statutes, “Trade Secret”
shall mean any information (including, without limitation, technical or
nontechnical data, a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers) that: (i) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.


(b)                                 Protection of Other
Confidential Information.  In addition, Employee agrees
to maintain in strict confidence and, except as necessary to perform his duties
for the Company, not to use or disclose any Confidential Information of the
Company during his employment and for a period of twelve (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 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, 


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                                                discovered, developed or created by
Employee in connection with performing his 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. § 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 salary, for
any exercise by the Company of its rights set forth in the immediately
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 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.


 


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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 or 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 30071


 


(b)           If to Employee:     12180 Oak Hollow Way


Alpharetta, Georgia 30005


 


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 seek
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 


 


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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.


 


The parties hereto have executed and delivered this Agreement as of the
Effective Date.


 


 


	
  IMMUCOR, INC.

  	
   

  	
  EMPLOYEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/Gioacchino De Chirico

  	
   

  	
  /s/Richard A. Flynt

  	
   

  
	
   

  	
  Gioacchino De Chirico, CEO

  	
   

  	
  Richard A. Flynt

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  November 20 , 2007

  	
   

  	
  Date:

  	
  November 20 , 2007

  	
   

  
							



 


 


 


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SCHEDULE
A


 


 


EMPLOYMENT AGREEMENT
DATED AS OF DECEMBER 10, 2007 BY AND BETWEEN 


IMMUCOR, INC. AND RICHARD
A. FLYNT


 


 


Base compensation:            $280,000.00
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/Gioacchino De Chirico

  	
   

  	
  /s/Richard A. Flynt

  	
   

  
	
   

  	
  Gioacchino De Chirico, CEO

  	
   

  	
  Richard A. Flynt

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  November 20 , 2007

  	
   

  	
  Date:

  	
  November 20 , 2007

  	
   

  
							



 


 


 


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