Exhibit 11
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of [the Closing
Date], is by and between GOLDEN ACQUISITION CORP., a Delaware corporation (the
"EMPLOYER") and [ ]("EXECUTIVE"). Capitalized terms used herein but
not otherwise defined herein shall have the meanings ascribed to them in that
certain Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of
February 23, 2000, by and among Gyrus Group Plc, a public limited company
existing under the laws of England and Wales ("PARENT"), the Employer and
Everest Medical Corporation, a Minnesota corporation (the "COMPANY").
WHEREAS, pursuant to the terms of the Merger Agreement, at the Effective
Time, the Company was merged (the "Merger") with and into the Employer, with the
Employer as the surviving corporation of the Merger;
WHEREAS, prior to the Effective Time, the Executive was the [ ]
of the Company;
WHEREAS, the Executive, in his role with the Company, had integral knowledge
of the Company's operations, policies, customers, personnel and community;
WHEREAS, the Employer believes that the Executive's services are necessary
to facilitate a smooth, sound and nondisruptive transition following the Merger
and to facilitate the effective operation of the Employer thereafter;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
Section1. FREEDOM TO CONTRACT. The Executive represents that he is free to
enter into this Agreement and that he has not made and will not make any
agreement in conflict with this Agreement.
Section2. EMPLOYMENT.
(a) The Employer hereby agrees to employ Executive as its
[ ], upon the terms and conditions set forth in this Agreement.
Executive agrees that he will, at all times, faithfully, industriously and,
to the best of his ability, experience and talents, perform all the duties
and responsibilities that may be required of him as [ ].
(b) Duties. Subject to the general direction of the Board of Directors
of the Employer (the "Board"), the Executive shall perform such duties
consistent with the Executive's position as [ ], as may be
requested from time to time by the President and Chief Executive Officer of
the Employer. While employed by the Employer hereunder, the Executive shall
devote his full business time and best efforts, judgment, skill and
knowledge exclusively to the advancement of the Employer's interests and to
the discharge of his duties and responsibilities for the Employer. While
employed by the Employer hereunder, the Executive shall not engage in any
other business activity, except as approved by the President and Chief
Executive Officer in writing. It is agreed, however, that the provisions of
this Section 2(b) shall not be violated by the Executive's holding of
directorships or related positions in charitable, educational or
not-for-profit organizations which do not involve substantial time
commitments or by passive personal investment activities, provided that such
positions and activities are not in conflict, and do not otherwise
interfere, with the Executive's duties and responsibilities to the Employer.
Section3. TERM OF EMPLOYMENT. Subject to early termination pursuant to
Section7 hereof, the term of employment of the Executive hereunder shall
commence on the Closing Date and shall continue until the third anniversary
thereafter (the "Term"), continuing thereafter on a month to month basis until
terminated by either party by written notice to the other given at least thirty
(30) days prior to such termination.
Section4. BASE COMPENSATION. The Employer shall pay the Executive, in
accordance with the Employer's payroll practices, a base salary (the "BASE
SALARY"). The Base Salary will be paid at an annual rate of
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$[ ] [TO BE 10% INCREASE OVER CURRENT SALARIES OF EACH EXECUTIVE WITH
COMPANY]. The Base Salary may be increased from time to time in the discretion
of the Board of Directors of the Employer and is in addition to the other
benefits set forth herein.
Section5. STOCK OPTION PLAN. During the Term, the Executive shall be
entitled to participate in a stock option plan adopted by Parent or the Employer
after the date hereof for employees of the Employer.
Section6. OTHER BENEFITS. During the term of his Agreement, Executive shall
be eligible to receive or participate in all of the insurance, vacation, benefit
plans and miscellaneous benefits received by other similarly-situated employees,
subject to the right of the Employer to make such changes in the benefits as it
may make for similarly-situated employees generally from time to time.
Section7. TERMINATION. Notwithstanding Section3 hereof, the Executive's
employment hereunder shall earlier terminate:
(a) Death or Disability. Upon the death of the Executive during the term
of his employment hereunder or, at the option of the Employer, in the event
of the Executive's disability, upon thirty (30) days' written notice from
the Employer. The Executive shall be deemed disabled if the Executive is
unable to perform his duties under this Agreement for ninety
(90) successive days.
(b) For Cause. For "Cause" immediately upon written notice by the
Employer to the Executive. For purposes of this Agreement, a termination
shall be for Cause if any one or more of the following has occurred:
(i) the Executive shall have been convicted by a court of competent
jurisdiction of, or pleaded guilty or nolo contendere to, any felony or
any crime involving moral turpitude;
(ii) commission of any act of fraud or dishonesty in connection with
the affairs of the Employer;
(iii) commission of any gross misdemeanor in connection with the
affairs of the Employer;
(iv) intentional disobedience with regard to, or failure to comply
with, courses of action or policies approved by the Employer which have
been communicated to Executive; or
(v) Executive's willful breach of the terms of this Agreement or
habitual neglect of his duties hereunder.
(c) WITHOUT CAUSE. Upon written notice by the Employer to the Executive
for any reason without Cause.
(d) RESIGNATION. Upon thirty (30) days' written notice by the Executive
to the Employer.
(e) RIGHTS AND REMEDIES ON TERMINATION.
(i) If the Executive's employment hereunder is terminated by the
Employer (A) pursuant to Section7(a), or (B) without Cause pursuant to
Section7(c), then in each case, the Executive shall be entitled to
receive payment, in accordance with the Employer's then current payroll
practices, of the Executive's Base Salary in effect at the time of such
termination until the date which is twelve (12) months after such
termination.
(ii) If the Executive's employment is terminated other than pursuant
to termination by the Employer (A) pursuant to Section7(a), or
(B) without Cause pursuant to Section7(c) hereof, the Executive shall
only be entitled to receive payment of his Base Salary through the date
of termination.
(iii) Except as otherwise set forth in this Section7(e), the Executive
shall not be entitled to any severance or other compensation after
termination.
8. CONFIDENTIAL INFORMATION.
(a) The Executive shall not, during or after his term of employment, use
or divulge or communicate to any person, other than with proper authority,
any of the trade secrets or other
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confidential information of, or relating to, the Employer or any of the
Employer's affiliates, including Parent, including but not limited to
details of customers, potential customers, consultants, suppliers, potential
suppliers, designs, product details, future product details, prices,
discounting arrangements, specific product applications, existing trade
arrangements, terms of business and those in the course of negotiation,
operating systems, pricing and fee structures, financial information,
inventions, research and development activities and surgical techniques
which the Executive may have created, developed, received, obtained or had
access to while employed by the Employer or Company.
(b) The Executive shall not during the term of his employment with the
Employer, make, other than for the benefit of the Employer, any records
(whether recorded on paper, computer memory or discs or otherwise) relating
to any matter within the scope of the business of the Employer or Parent or
concerning any of its or their operations nor, either during the term of his
employment with the Employer or thereafter, use or permit to be used any
such records otherwise than for the benefit of the Employer, it being
understood by the Executive that all such records (and copies thereof) in
the possession or control of the Executive shall be the property of the
Employer. In the event of the termination of his employment, whether
voluntary or involuntary and whether by the Employer or the Executive, the
Executive shall deliver to the Employer all such records (and copies
thereof).
9. NON-COMPETITION.
(a) In further consideration of the Employer's obligations hereunder,
during the term of the Executive's employment hereunder until the date which
is one (1) year after termination of the Executive's employment hereunder,
the Executive will not, directly or indirectly, alone or in any capacity
with another legal entity, (i) engage, contribute, assist or in any way
participate in any activity involving or connected with the manufacture or
distribution of electrosurgical medical devices that is directly competitive
with the Employer or Parent, wherever located, including products that are
in development for commercialization or identified in Employer's or Parent's
present or future business plan, (ii) contact or in any way interfere or
attempt to interfere with the relationship of the Employer with any current
or potential customer of the Employer, or (iii) solicit or encourage any
officer, employee or consultant of the Employer to leave its employ for
employment by or with any other employer.
(b) If at any time the provisions of this Section9 shall be determined
to be invalid or unenforceable, by reason of being vague or unreasonable as
to area, duration or scope of activity, this Section9 shall be considered
divisible and shall become and be immediately amended to only such area,
duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter;
and the Executive agrees that this Section9 as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been
included herein.
10. SPECIFIC PERFORMANCE. Executive acknowledges that a breach of this
Agreement would cause the Employer irreparable injury and damage which could not
be remedied or adequately compensated by damages at law; therefore, Executive
expressly agrees that the Employer shall be entitled, in addition to any other
remedies legally available, to injunctive and/or other equitable relief to
prevent a breach of this Agreement.
11. MISCELLANEOUS.
(a) Waiver by the Employer of a breach of any provision of this
Agreement by Executive shall not operate or be construed as a waiver of any
subsequent breach by Executive.
(b) This Agreement shall be binding upon and inure to the benefit of the
Employer, its successors and assigns, and, as to Executive, his heirs,
personal representatives, estate, legatees and assigns.
(c) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements whether written or oral relating hereto.
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(d) This Agreement shall be governed by and construed under the laws of
the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
GOLDEN ACQUISITION CORP.
By:
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Name:
Title:
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EXECUTIVE
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