Exhibit 10
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), dated February 23, 2000, is by
and between Gyrus Group PLC, a public limited company incorporated and existing
under the laws of England and Wales ("GYRUS"), and Everest Medical Corporation,
a Minnesota corporation ("EVEREST").
RECITALS
WHEREAS, Gyrus desires to market and sell its products in North America.
WHEREAS, Everest, Gyrus and Golden Acquisition Corp., a Delaware corporation
("NEWCO") and a direct wholly-owned subsidiary of Gyrus, are entering into an
Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated on or about the
date hereof, providing for, among other things, the merger (the "MERGER") of
Everest with and into Newco.
WHEREAS, Gyrus and Everest recognize the complimentary nature of their
businesses, and the synergies that could be obtained if they could form a
business relationship.
WHEREAS, Gyrus and Everest wish to provide a basis for working together
whether or not the business combination contemplated by the Merger Agreement
occurs.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Gyrus and Everest hereby agree as
follows:
Section1. EFFECTIVENESS. This Agreement shall become effective and binding
on the parties hereto from and after the date hereof.
Section2. APPOINTMENT. Subject to the terms and conditions of this
Agreement, beginning on the Commencement Date (as defined in Section4 hereof),
Gyrus hereby retains Everest to act as its consultant, and Everest hereby agrees
to its appointment as Gyrus' consultant (the "CONSULTANCY") to provide to Gyrus
consulting and advisory services in connection with Gyrus' development of an
independent sales network for the distribution of its products in North America
(the "MISSION").
Section3. CONSULTING SERVICES. During the Consultancy Period (as such term
is defined in Section4 hereof), Everest agrees to provide to Gyrus such
consulting and advisory services as Gyrus shall reasonably request from time to
time in connection with the Mission.
Section4. TERM. Subject to Section5 hereof, the Consultancy shall commence
on the date which is ninety (90) days after the date hereof (the "COMMENCEMENT
DATE") and shall continue, unless this Agreement is terminated earlier in
accordance with Section5 hereof, through the fourth anniversary of the
Commencement Date (the "CONSULTANCY PERIOD").
Section5. TERMINATION. Notwithstanding Section4 to the contrary, Gyrus may
terminate this Agreement and the Consultancy, in which case the parties shall
have no further rights or obligations hereunder (including the obligation to pay
the Consultancy Fee described in Section6), in the event that the Merger
Agreement is terminated in accordance with its terms, other than a termination
of the Merger Agreement (a) by Gyrus pursuant to Section 7.01(c)(ii) of the
Merger Agreement or (b) by Gyrus or Everest pursuant to
Section 7.01(b)(iii) of the Merger Agreement, but in the case of this subsection
(b) only in the event that the shareholders of Gyrus fail to approve the Share
Issuance contemplated by the Merger Agreement. In addition, this Agreement and
the Consultancy may be terminated by the mutual agreement of the parties hereto.
Section6. FEES. In consideration of Everest's performance of services during
the Consultancy Period, subject to Section5 hereof, Gyrus shall pay to Everest a
fee (the "CONSULTANCY FEE") in the amount of one million dollars
($1,000,000.00), such Consultancy Fee to be payable in the manner provided for
in the next sentence of this Section6. The Consultancy Fee shall be payable in
four equal installments of $250,000, the first such installment
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to be payable on the Commencement Date and each of the remaining installments to
be payable on each of the three subsequent anniversary dates of the Commencement
Date thereafter.
Section7. ACCESS TO INFORMATION; NOTIFICATION. The parties hereto agree to
provide each other, when requested, all information reasonably requested by such
requesting party in connection with the Consultancy pursuant to this Agreement.
All information provided by a party under this Agreement shall be received by
the requesting party in strict confidence, shall be used only for purposes of
the Consultancy and shall not be disclosed by the requesting party without the
prior written consent of the party providing such information.
Section8. SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned by
the parties hereto, except that Gyrus may assign its rights and obligations
hereunder to any of its affiliates; provided, however, that Gyrus shall remain
subject to the rights and obligations of this Agreement. Subject to the
foregoing, this Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section9. REPRESENTATIONS AND WARRANTIES.
(a) Gyrus represents and warrants that (a) it has the full corporate power
and authority to enter into this Agreement and to perform its obligations
hereunder and to consummate all the transactions contemplated hereby,
(b) this Agreement is a valid and binding obligation of Gyrus and
(c) the performance of the transactions contemplated hereby does not
violate (i) Gyrus' organizational documents, (ii) any material agreement
or instrument to which Gyrus is a party or by which Gyrus is bound, or
(iii) any law or regulation applicable to Gyrus.
(b) Everest represents and warrants that (a) it has the full corporate power
and authority to enter into this Agreement and to perform its obligations
hereunder and to consummate all the transactions contemplated hereby,
(b) this Agreement is a valid and binding obligation of Everest and
(c) the performance of the transactions contemplated hereby does not
violate (i) Everest's Articles of Organization or By-laws, (ii) any
material agreement or instrument to which Everest is a party or by which
Everest is bound, or (iii) any law or regulation applicable to Everest.
(c) The representations and warranties of Gyrus and Everest contained herein
shall survive until, and shall expire with, and be terminated and
extinguished upon, the termination of this Agreement.
Section10. NOTICE. Any notice, request, instruction or other document to be
given hereunder by any party hereto to any other party shall be in writing and
shall be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by electronic facsimile transmission, cable, telegram, telex
or other standard form of telecommunications, by overnight courier or by
registered or certified mail, postage prepaid, addressed as follows:
if to Gyrus:
Gyrus Group Plc
Xxxxxxx Xxxx, Xx. Xxxxxxx
Xxxxxxx XX0 0XX
Xxxxxxx
Attention: Xx. Xxxx Xxxxx
Managing Director
Telecopy: 011-44-1222-776384
with copies to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy:: (000) 000-0000
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if to Everest:
Everest Medical Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx
Chairman, President and Chief Executive Officer
Telecopy: (000) 000-0000
with copies to:
Xxxxxxxxxxx & Xxxxx, P.A.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx, Esq.
and
Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
or at such other address for a party as shall be specified by written
notice.
Section11. AMENDMENT. No waiver or modification to this Agreement will be
valid unless executed in writing by Gyrus and Everest.
Section12. WAIVER. No waiver of any right or obligation under this Agreement
by any party on any occasion will be deemed to operate as a waiver on any other
occasion.
Section13. ENTIRE AGREEMENT. This Agreement constitute the entire agreement
and understanding between the parties relating to the subject matter hereof.
Section14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic substantive laws of the State of Minnesota. The
parties hereby consent to the personal jurisdiction of the state and federal
courts located in the State of Minnesota in connection with any controversy
related to this Agreement, waive any argument that venue in such forums is not
convenient and agree that any litigation instigated by either party may be
brought in either the District Court of Hennipen County, Minnesota or the United
States Federal Court for the District of Minnesota, Fourth District.
Section15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement is invalid or unenforceable, the remainder of this
Agreement shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction.
Section16. LIQUIDATED DAMAGES. A breach of this Agreement on the part of
Gyrus shall allow Everest liquidated damages in the amount equal to one million
dollars ($1,000,000) minus the total amount of the Consultancy Fee paid. The
parties agree that the preceding formula for determining Everest's damages is
reasonable and is not a penalty.
Section17. INDEPENDENCE OF PARTIES. Everest shall have the status of and act
as an independent contractor with respect to Gyrus. Nothing herein shall be
construed to create a partnership, joint venture, or agent-principal
relationship between Everest and Gyrus.
Section18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same document.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their duly authorized officers or directors.
EVEREST MEDICAL CORPORATION
By: /s/Xxxx X. Xxxxxxx, Xx.
Title: Chairman, President and Chief Executive
Officer
GYRUS GROUP PLC
By: /s/Xxxx Xxxxx
Title: Group Managing Director
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