EXHIBIT 10.11
- -------------
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the
first day of _____, 2000 by and between Ampersand Medical Corporation, a
Delaware corporation ("Ampersand"), and __________________________
("Employee").
RECITALS
Ampersand desires to have the benefits of Employee's knowledge and
experience as a full time senior executive without distraction by
employment-related uncertainties and considers such employment a vital
element of protecting and enhancing the best interests of Ampersand and its
shareholders.
Employee desires to be employed full time with Ampersand.
Ampersand desires to assure itself of the continued services of
Employee, and Employee desires to render services to Ampersand.
In consideration of the mutual covenants and other good and valuable
consideration, the parties agree as follows:
1. Term. Ampersand shall employ Employee for a ______ (__) year
period commencing __________________ (the "Effective Date") and ending
________________, unless terminated as provided in Sections 5 or 6. This
Agreement shall automatically renew for additional one (1) year terms
unless either party delivers to the other written notice of non-renewal at
least 60 days prior to the end of the term. In addition, if a Change of
Control as defined in section 7(d) occurs when less than one (1) year
remains prior to the expiration of this Agreement, this Agreement shall be
automatically extended until the first anniversary of the date on which the
Change of Control occurred. The period during which Employee is employed by
Ampersand is the "Employment Period."
2. Duties. Employee shall serve as the
___________________________________ and shall exercise the authority and
assume the responsibilities typically given to the
________________________________________ of a corporation similar in size
and nature to Ampersand, and shall assume any other duties and
responsibilities as the Board of Directors may prescribe that are
consistent with the duties of the president and chief financial officer of
a company similar in size and nature to Ampersand. Throughout the
Employment Period, Employee shall devote substantially all of his time,
attention and efforts during normal business hours to the performance of
his duties. Employee shall not render any services as a director, trustee,
officer, employee or consultant to any other organization without the prior
approval of the Board of Directors.
3. Compensation. During the Employment Period, Ampersand shall
compensate Employee as follows:
(a) A base annual salary determined by the Board of Directors
consistent with its practices for executive officers of Ampersand, but not
less than $_______________ per year, payable in accordance with Ampersand's
customary payroll practices;
(b) Bonuses as determined by the Board of Directors;
(c) If Employee's base annual salary is increased at any time, it
shall not thereafter be decreased;
(d) A monthly automobile allowance of $___________________.
4. Employee Benefits-
(a) Employee shall be entitled, on a basis commensurate with
Employee's position with Ampersand, to full participation in, and service
credit for benefits as provided under, all life, accident, medical payment,
health and disability insurance, retirement pension, salary continuation,
expense reimbursement and other employee benefit and perquisite policies,
plans, programs and arrangements that generally are made available to
executive officers of Ampersand, except for such arrangements that the
Board of Directors, in its discretion, shall adopt for select employees to
compensate them for special or extenuating circumstances.
(b) Employee shall be entitled to _______ (__) weeks of
annual vacation leave at full pay.
(c) Employee shall be entitled to participate in all bonus,
incentive, profit-sharing, stock option, stock purchase, stock
appreciation, discretionary pay and similar policies, plans programs and
arrangements that generally are made available to executive officers of
Ampersand.
(d) Nothing in this Agreement shall limit in any way
Employee's participation in any other benefit plans or arrangements as are
from time to time approved by Ampersand.
5. Termination by Ampersand. Ampersand may terminate this
Agreement without entitling Employee to the severance benefits provided by
Sections 7 and 8 only under the following circumstances:
(a) Death, Total Disability or Retirement. This Agreement
shall be terminated upon Employee's death or retirement. This Agreement
shall be terminated if, as a result of Employee's incapacity resulting from
physical or mental illness or disease that is likely to be permanent,
Employee is unable to perform his duties for a period of more than 120
consecutive days during any twelve (12) month period and Employee is
qualified and eligible to receive disability benefits under the long-term
disability plan then in effect for executive officers of Ampersand; and
(b) Cause. Ampersand may terminate this Agreement for cause,
which means:
(i) the repeated, willful and continued failure by
Employee to follow the reasonable instructions of the Board of Directors of
Ampersand after Employee has been given written notice of the failure and a
period of at least thirty (30) days to cure the failure;
(ii) the willful commission by Employee of acts that are
dishonest and materially injurious to Ampersand;
(iii)the conviction of Employee of a felony; or
(iv) drug addiction.
Ampersand's termination of this Agreement for any reason other than those
specified in this Section 5 shall be a termination without cause. No breach
or default by Employee shall be deemed to have occurred unless written
notice is given to Employee within sixty (60) days after Ampersand first
learns of the breach or default and it is not cured within thirty (30) days
after notice is given to Employee.
6. Termination by Employee. Employee may terminate this Agreement,
and shall be entitled to severance compensation and benefits as provided in
Sections 7 and 8 if:
(a) at any time more than 120 days after the occurrence of a Change
of Control, for any reason or no reason at all; or
(b) for Good Reason, provided that Employee terminates this
Agreement no later than ninety (90) days following the occurrence of an
event constituting Good Reason. "Good Reason" means the occurrence of any
of the following:
(i) The assignment of duties to Employee that are materially
inconsistent with Employee's position, duties and status as contemplated by
this Agreement (without the express written consent of Employee);
(ii) Any action by Ampersand that results in a material
adverse change in the nature or scope of the position, duties, authorities,
responsibilities or functions of Employee as contemplated by this
Agreement, except for strategic reallocations of the personnel reporting to
Employee;
(iii) Employee's base annual salary, as may be increased from
time to time, is reduced, Employee's right to participate in any policy,
plan, program or arrangement of the type referred to in Section 4(c) is
changed or terminated, or Employee's right to benefits of the type referred
to in Section 4(a) is changed, terminated or denied;
(iv) Ampersand relocates its principal executive offices, or
requires Employee to change his principal location of work to any location
that is more than fifty 50 miles from his principal location of work on the
Effective Date, or requires Employee to travel away from his office in the
course of discharging Employee's responsibilities or duties significantly
more (in terms of either consecutive days or aggregate days in any calendar
year) than was required of Employee prior to the Effective Date, in either
case without Employee's prior written consent; provided, however, that
Ampersand has the fight to make temporary assignments for a reasonable
period of time at other locations where Ampersand has a special need for
Employee's services; or
(v) Without limiting the generality or effect of the
foregoing, Ampersand fails to comply with any of its obligations in any
material respect.
7. Severance Payment After Change of Control.
(a) If, following the occurrence of a Change of Control, Ampersand
terminates this Agreement without cause or Employee resigns for Good
Reason, Employee shall receive a lump sum severance payment equal to
Employee's Base Amount, as defined in subsection (b) below.
(b) "Base Amount" means the sum of:
(i) Employee's annual base salary in effect immediately prior
to the termination of this Agreement; plus
(ii) the highest incentive compensation paid to Employee in
any of the two consecutive annual incentive compensation periods ending
immediately prior to the termination of this Agreement; plus
(iii) the monthly automobile allowance Employee is entitled to
receive pursuant to Section 3(d), multiplied by 12.
(c) If a Change of Control occurs, despite the terms of any
applicable plan or arrangement to the contrary,
(i) Employee's stock options and stock appreciation rights
shall immediately vest and be immediately exercisable,
(ii) any risk of forfeiture included in restricted stock
grants made to Employee shall immediately lapse, and
(iii) Employee's rights in all other employee benefit and
compensation plans shall immediately vest, provided that Employee's rights
under any plan or arrangement of Ampersand described in Section 28OG(b)(6)
of the Internal Revenue Code of 1986, as amended, or any successor
provision thereto (the "Code"), shall not be altered as a result of this
subsection (c).
(d) A "Change of Control" shall be deemed to have taken place if:
(i) if Peter P. Gombrich shall cease to be the Chief
Executive Officer of the Company and the termination of his employment is a
direct result of any of the events set forth in paragraph (d)(ii) through
(d)(viii);
(ii) if any person, as that term is used in Section 13(d) and
Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), except the stockholders of record immediately prior to the
date hereof, becomes, is discovered to be, or files a report on Schedule
13D or 14D-1 disclosing that he is the beneficial owner, as defined in Rule
13d-3 under the Exchange Act, directly or indirectly, of securities
representing 20% or more of the combined voting power of Ampersand's then
outstanding securities entitled to vote generally in the election of
directors (unless such person is known by Employee to already be a
beneficial owner on the date of this Agreement);
(iii) Ampersand is merged, consolidated or reorganized into or
with another corporation or other legal person, or securities of Ampersand
are exchanged for securities of another corporation or other legal person,
and, immediately after such merger, consolidation, reorganization or
exchange, less than a majority of the combined voting power of the then
outstanding securities of the corporation or person immediately after the
transaction are held, directly or indirectly, in the aggregate by the
stockholders of Ampersand immediately prior to such transaction;
(iv) Ampersand, in any transaction or series of related
transactions, sells all or substantially all of its assets, and less than a
majority of the combined voting power of the then outstanding securities of
the purchaser immediately after the sale or sales are held, directly or
indirectly, in the aggregate by the stockholders of Ampersand immediately
prior to the sale;
(v) Ampersand sells or disposes of (in any transaction or
series of related transactions) business operations that generated two-
thirds of its consolidated revenues immediately prior thereto, determined
on the basis of Ampersand's four most recently completed fiscal quarters;
(vi) Ampersand files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing,
in response to Form 8-K or Schedule 14A, that a change in control of
Ampersand may have occurred or may occur pursuant to any then-existing
contract or transactions;
(vii) any other transaction or series of related transactions
occurs that has substantially the effect of a transaction specified in any
of the preceding clauses in this subsection (d); or
(viii) Employee is terminated by Ampersand, or removed from
Employee's office or position without cause within ninety (90) days before
a Change of Control occurs.
(e) Notwithstanding any contrary provision in this Agreement, if
any amount or benefit to be paid or provided would be an "Excess Parachute
Payment", within the meaning of Section 280G of the Code but for the
application of this Subsection 7(e), then the payments and benefits shall
be reduced to the minimum extent necessary, but in no event to less than
zero, so that no portion of any payment or benefit, as reduced, constitutes
an Excess Parachute Payment. The determination of whether any reduction in
the payments or benefits is required pursuant to this Section 7(e) shall be
made at the expense of Ampersand. If any payments or benefits intended to
be provided must be reduced pursuant to this subsection (e), Employee may
designate the payments or benefits to be reduced. Ampersand shall provide
Employee with all reasonably requested information for Employee to make the
designation. If Employee fails to make such designation within ten (10)
business days of the termination of this Agreement, Ampersand may effect
reduction in any manner it deems appropriate.
(f) Notwithstanding the provisions of Section 7(d)(i), (ii) and
(v), unless otherwise determined in a specific case by majority vote of the
Board of Directors, a Change of Control shall not be deemed to have
occurred solely because an entity in which Ampersand directly or indirectly
beneficially owns 50% or more of the voting securities, or any Ampersand
sponsored employee stock ownership plan or other employee benefit plan
files or becomes obligated to file a report or a proxy statement in
response to Schedule 13D, Schedule 14D-l, Form 8-K or Schedule 14A under
the Exchange Act, disclosing beneficial ownership by it of units of
Ampersand, or because Ampersand reports that a change in control may have
occurred or may occur in the future by reason of such beneficial ownership.
(g) If this Agreement is not terminated as provided in Section
7(a), then the rights and obligations of the parties for the balance of the
Employment Period shall be governed by this Agreement exclusive of the
provisions contained in this Section 7, except this Section 7 shall
continue and become applicable if a subsequent Change of Control occurs
during the Employment Period.
8. Other Severance Benefits.
(a) If Employee is terminated without cause or Employee resigns for
Good Reason, and no Change of Control has occurred, Employee shall receive
a severance payment equal to Employee's Base Amount as defined in Section
7(b).
(b) If Employee is terminated without cause or Employee resigns for
Good Reason or as provided in Section 6(a), Ampersand shall continue to
provide, at no cost to Employee, basic employee group benefits referred to
in Section 4(a) that are welfare benefits, but not pension, retirement or
similar compensatory benefits, for Employee and Employee's dependents and
are substantially similar to those they were receiving or to which they
were entitled immediately prior to the termination of this Agreement for
the lesser of one year after termination or until Employee secures new
employment. Employee's stock option agreements shall provide for a
continuance of the option exercise period for at least two (2) years from
the date of Employee's termination without cause and at least one (1) year
from the date of Employee's resignation for Good Reason, except that if
Employee dies, continuance of the option exercise period shall be at least
two (2) years and the exercise period of an option shall not be extended
beyond the date on which it would have terminated had Employee continued to
be employed by the Company. The preceding sentence shall not apply to any
"incentive stock option," as that term is defined in Section 411 of the
Code.
(c) If Employee is terminated without cause or Employee resigns for
Good Reason or as provided in Section 6(a), Ampersand shall promptly,
within five (5) business days after a request by Employee, pay or reimburse
Employee for the costs and expenses of any executive outplacement firm
selected by Employee; provided that Ampersand's liability under this
Subsection (e) shall be limited to $20,000. Employee shall provide
Ampersand with reasonable documentation of outplacement costs and expenses.
9. Timing of Payment. Any severance or other payment under this
Agreement shall be paid within thirty (30) days after the event giving rise
to Employee's entitlement to the payment or at any other date as the
parties agree.
10. Other Benefits. The provisions of Sections 7 and 8 shall not
affect Employee's participation in or terminate distributions and vested
rights under any pension, profit sharing, insurance or other employee
benefit plan to which Employee is entitled pursuant to the terms of the
plans, except for the acceleration of vested benefits in certain employee
benefits pursuant to Section 7(c) and as provided in Section 8(b).
11.No Mitigation Obligation. Ampersand recognizes that it will be
difficult, and may be impossible, for Employee to find reasonable
comparable employment following the termination of this Agreement. The non-
competition covenant contained in Section 13 further limits the employment
opportunities for Employee. In addition, Ampersand's severance pay policy
applicable in general to its salaried employees does not provide for
mitigation, offset or reduction of any severance payment. Accordingly, the
payment of severance compensation under this Agreement will be liquidated
damages, and that Employee shall not be required to seek other employment
or otherwise mitigate any payment.
12. No Right to Set Off. Ampersand shall not set off against
amounts payable to Employee any amounts earned by Employee in other
employment, or otherwise, after termination of this Agreement, or any
amounts which might have been earned by Employee in other employment had he
sought such other employment.
13. Competitive Activity. For two (2) years following the
termination of this Agreement, if Employee receives payments and benefits
under this Agreement, Employee shall not, without the prior written consent
of the Board of Directors, engage in any Competitive Activity. "Competitive
Activity" means Employee's participation in the management of any business
if it engages in substantial and direct competition with Ampersand and the
business' sales of any competing product or service amounted to 25% or more
of its net sales for its most recently completed fiscal year, and if
Ampersand's net sales of a competing product or service amounted to 25% or
more of Ampersand's net sales for its most recently completed fiscal year.
"Competitive Activity" shall not include
(a) the mere ownership of securities in any business and the
exercise of rights appurtenant thereto, or
(b) participation in the management of any business other than in
connection with that business' operations competitive with Ampersand.
14. Non-Disclosure of Information.
(a) During the Employment Period, and at all times thereafter,
except in the performance of Employee's obligations to Ampersand, Employee
shall not, directly or indirectly, use or authorize the use of any
confidential or other proprietary information ("Confidential Information")
of Ampersand including but not limited to trade secrets, product
specifications and ideas, manuals, systems, procedures, confidential
reports, customer lists, sales or distribution methods, patentable
information and data and financial information concerning Ampersand, which
Confidential Information has been made known, whether or not with the
knowledge and permission of Ampersand, and whether or not developed,
devised or otherwise created in whole or in part by the efforts of
Employee, to Employee by reason of Employee's activities on behalf of
Ampersand. Employee shall not reveal, divulge or make known any
Confidential Information to any individual or business organization
whatsoever except in performance of Employee's obligations to Ampersand,
with the express permission of the Board of Directors, or as required by
operation of law.
(b) All Confidential Information is the exclusive property of
Ampersand. All business records, papers and documents kept or made by
Employee relating to the business of Ampersand shall be and remain the
property of Ampersand and shall remain in the possession of Ampersand. Upon
the termination of this Agreement or upon the request of Ampersand at any
time, Employee shall promptly deliver to Ampersand, and shall retain no
copies of any written materials, records or documents made by Employee or
in Employee's possession concerning the business and affairs of Ampersand
that contain Confidential Information.
(c) Without limiting the remedies available to Ampersand, Employee
acknowledges that a breach of any of the covenants contained in Section 13
and this Section 14 may result in material irreparable injury to Ampersand
for which there is no adequate remedy at law, that it may not be possible
to measure damages for such injuries precisely and that, in the event of a
breach or threatened breach, Ampersand may obtain a temporary restraining
order and a preliminary or permanent injunction restraining Employee from
engaging in activities prohibited by Section 13 or this Section 14 or any
other relief as may be required to specifically enforce any of the
covenants in such Sections.
15. Inventions.
(a) Employee shall promptly and fully disclose to Ampersand any and
all ideas, improvements, discoveries and inventions, whether or not they
are believed to be patentable ("Inventions"), which Employee conceives or
first actually reduces to practice, either alone or with others, during the
Employment Period, and which relate to the business now or hereafter
carried on or contemplated by Ampersand, or which result from any work
performed by Employee for Ampersand.
(b) All Inventions shall be the sole and exclusive property of
Ampersand, and during the Employment Period and at all times thereafter,
Employee shall, upon request, execute and assign any and all applications,
assignments and other instruments that Ampersand shall deem necessary or
appropriate to apply for or obtain a United States patent, trademark or
copyright and/or any foreign patent, trademark or copyright for any
Inventions. Employee shall assign and convey to Ampersand or its nominee
the sole and exclusive right, title and interest in and to any Inventions.
(c) The provisions of this Section 15 do not apply to an invention
for which no equipment, supplies, facility or Confidential Information of
Ampersand was used, that was developed entirely on Employee's own time, and
(i) that does not relate directly to the business of
Ampersand or to Ampersand's actual or anticipated research or development,
or
(ii) that does not result from any work performed by Employee
for Ampersand.
16. Binding Arbitration: Legal Fees and Expenses.
(a) Any dispute or controversy arising under or in connection with
this Agreement prior to the occurrence of a Change of Control shall be
resolved exclusively by binding arbitration in Cook County, Illinois, in
accordance with the rules of the American Arbitration Association. Judgment
may be entered on the arbitrator's award in any court having jurisdiction.
Each party shall bear his or its own costs and expenses of arbitration, but
if Employee is the prevailing party in such arbitration, in whole or in
part, Ampersand shall pay as part of the award all attorney's and related
fees, costs and expenses incurred by Employee in connection with the
arbitration.
(b) If a Change of Control occurs and Employee determines, in good
faith, that Ampersand has failed to comply with any of its obligations
under this Agreement, or Ampersand or any other person takes or threatens
to take any action to declare this Agreement void or unenforceable or
institutes any litigation, arbitration proceeding or other action or
proceeding designed to deny or recover from Employee the benefits provided
or intended to be provided to Employee, Ampersand shall pay for, as
provided below, counsel selected and retained by Employee, to represent
Employee in connection with the initiation or defense of any litigation,
arbitration or other legal action, whether by or against Ampersand or any
director, officer, stockholder or other person affiliated with Ampersand,
in any jurisdiction. Within ten (10) business days after receipt of
Employee's request referencing this Section 16(b), Ampersand shall pay or
reimburse Employee for fees and expenses incurred, or reasonably
anticipated to be incurred, in accordance with the request and this Section
16(b). Ampersand shall pay and shall be solely responsible for any and all
attorneys' and related fees and expenses incurred by Employee in connection
with any of the foregoing, excluding any fees and expenses related to an
unsuccessful appeal filed by Employee of an adjudication on the merits, any
motion for a new trial filed by Employee that is denied or any other motion
filed by Employee for reconsideration or review that is denied.
17. Withholding of Taxes. Ampersand may withhold from any amounts
payable under this Agreement federal, state, city or other taxes as
required by law or government regulation.
18. Notices. All notices, requests, demands and other
communications called for or contemplated by this Agreement shall be in
writing and shall be deemed given when delivered personally or when mailed
by United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the parties, their successors in interest or
assignees at the following addresses or such other addresses as the parties
may designate:
If to Ampersand: Ampersand Medical Corporation
414 N. Orleans, Suite 305
Chicago, Illinois 60610
Attn: Secretary
If to Employee: ___________________________
___________________________
___________________________
___________________________
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without
giving effect to Illinois' principles of conflict of laws. Venue will be
solely in the state or federal courts located in Cook County, Illinois,
subject only to Section 16(a).
20. Validity. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain
in full force and effect. Any provision of this Agreement held to be
invalid or unenforceable shall be reformed only to the extent necessary to
make it valid and enforceable.
21. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter, and
supersedes all negotiations, prior discussions, preliminary agreements and
employment arrangements between Employee and Ampersand. This Agreement may
not be amended, nor may any of its provisions be waived, except in a
writing executed by the parties.
22. Effect on Successors In Interest. This Agreement shall inure
to the benefit of and be binding upon the heirs, administrators, executors
and successors of each of the parties, including without limitation any
person acquiring, directly or indirectly, all or substantially all of the
business and/or assets of Ampersand by purchase, merger, consolidation,
reorganization or otherwise, and such successor shall thereafter be deemed
"Ampersand" for purpose of this Agreement. This Agreement is personal in
nature and neither of the parties shall, without the consent of the other,
assign, transfer or delegate this Agreement or any rights or obligations
except as expressly provided in this Section. Without limiting the
generality of the foregoing, Employee's fight to receive payments shall not
be assignable, transferable or delegable, whether by pledge, creation of a
security interest or otherwise, other than by bequest or devise or by the
laws of descent and distribution and, upon any attempt to assign or
transfer contrary to this Section, Ampersand shall have no liability to pay
any amount attempted to be assigned, transferred or delegated.
23. Effectiveness. This Agreement shall be effective upon the
Effective Date.
24. Captions. The captions and headings of the sections are
inserted only as a convenience and do not define, limit or otherwise
describe the scope of this Agreement or the intent of any of its
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
AMPERSAND MEDICAL CORPORATION
By: _____________________________
Peter P. Gombrich
_____________________________
(Employee)