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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
June 21, 2001, by and between Xxxxxx Xxxxxx, an individual resident of the State
of Georgia ("Employee"), and Horizon Medical Products, Inc., a Georgia
corporation (the "Employer").
W I T N E S S E T H:
WHEREAS, Employer desires to continue the employment of Employee and
Employee desires to continue to be employed by Employer, on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1 EMPLOYMENT.
Subject to the terms hereof, Employer agrees to continue the employment
of Employee, and Employee hereby accepts such employment. Employee will serve as
Vice President-Sales of Employer. Employee agrees to devote his full business
time and best efforts to the performance of the duties that the Chief Executive
Officer of Employer or the Chief Operating Officer of Employer (or President if
there is no Chief Operating Officer) may assign Employee from time to time,
which duties will be consistent with Employee's position and title.
SECTION 2 TERM OF EMPLOYMENT.
The term of Employee's employment hereunder (the "Term") shall be from
June 21, 2001 (the "Effective Date") until termination upon the occurrence of
any of the following events, provided that the Term shall expire on June 21,
2003 if not previously terminated:
(I) The death or total disability of Employee (total
disability meaning the failure to fully perform his
normal required services hereunder for a period of
three (3) consecutive months during the Term hereof,
as determined by the Board of Directors, by reason of
mental or physical disability);
(II) The termination by Employer of Employee's employment
hereunder, upon prior written notice to Employee, for
"good cause". For purposes of this Agreement, "good
cause"
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for termination of Employee's employment shall exist
(A) if Employee is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud,
misappropriation, or embezzlement, (B) if Employee
has engaged in a dishonest act to the material damage
or prejudice of Employer or an affiliate of Employer,
or in misconduct or unlawful or improper activities
materially damaging to the business of Employer or an
affiliate of Employer, or (C) if Employee fails to
comply with the terms of this Agreement, and, within
thirty (30) days after written notice from Employer
of such failure, Employee has not corrected such
failure or, having once received such notice of
failure and having so corrected such failure,
Employee at any time thereafter again so fails,
provided, that Employee will be given the opportunity
to explain his position in the matter at a meeting of
the Board of Directors of Employer prior to any
termination under this clause (C), or (D) if Employee
wilfully neglects or breaches his duties or engages
in intentional misconduct in discharging his duties
as an officer and employee of the Employer, or (E) if
Employee fails to meet the quarterly or annual
management business objectives specifically for
Employee that are mutually agreed to by the Chief
Executive Officer of Employer and Employee or by the
Chief Operating Officer and Employee;
(III) The termination of this Agreement by Employee upon at
least ninety (90) days prior written notice;
(IV) The termination of this Agreement by Employer without
cause upon at least thirty (30) days prior written
notice; or
(V) The termination of this Agreement by mutual written
agreement of Employer and Employee.
SECTION 3 COMPENSATION.
3.1 TERM OF EMPLOYMENT. Employer will provide Employee
with the following salary, expense reimbursement, and additional employee
benefits during the term of employment hereunder:
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(A) SALARY. Employee will be paid a salary (the "Salary")
of no less than One Hundred Fifty Thousand Dollars
($150,000.00) per annum, less deductions and
withholdings required by applicable law. The Salary
shall be paid to Employee in equal monthly
installments (or on such more frequent basis as other
executives of Employer are compensated). The Salary
may be reviewed by the Board of Directors or the
Compensation Committee of the Board of Directors (the
"Compensation Committee") of Employer on at least an
annual basis, but shall not be below $150,000.00.
(B) BONUS. For each calendar quarter during the Term,
Employee shall be eligible to earn a bonus of Ten
Thousand Dollars ($10,000.00), based upon the actual
domestic sales performance of Employer during such
calendar quarter. If Employer's domestic sales during
a calendar quarter exceed the amount of domestic
sales of Employer set forth in Employer's operating
plan for the year in question, the Employee is
entitled to such bonus. If such bonus is earned by
Employee for a calendar quarter, the bonus will be
paid within 30 to 45 days after the quarter.
(C) CAR ALLOWANCE. Employer shall provide Employee with a
monthly allowance of $500.00 for automobile.
(D) VACATION. Employee shall receive four (4) weeks
vacation time per calendar year during the term of
this Agreement commencing with the year 2001. Any
unused vacation days in any calendar year may not be
carried over to subsequent years.
(E) EXPENSES. Employer shall reimburse Employee for all
reasonable and necessary expenses incurred by
Employee at the request of and on behalf of Employer.
Reimbursement requests will comply with the
Employer's procedures and policies and must be
approved by the Chief Executive Officer or the Chief
Operating Officer.
(F) BENEFIT PLANS. Employee may participate in such
medical, dental, disability, hospitalization, life
insurance, and other benefit plans (such as pension
and profit
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sharing plans) as Employer maintains from time to
time for the benefit of other vice-president
executives of Employer, on the terms and subject to
the conditions set forth in such plans, including
without limitation Employer's 401(k) Plan.
3.2 EFFECT OF TERMINATION. Except as hereinafter
provided, upon the termination of the employment of Employee hereunder for any
reason, Employee shall be entitled to all compensation and benefits earned or
accrued under Section 3.1 as of the effective date of Termination (the
"Termination Date"), but from and after the Termination Date no additional
compensation or benefits shall be earned by Employee hereunder. Except in the
case of a termination of the employment of Employee pursuant to Section 2(ii)
hereof or a termination by Employee of Employee's employment pursuant to Section
2(iii) hereof, Employee shall be deemed to have earned any Bonus payable with
respect to the calendar quarter in which the Termination Date occurs on a
prorated basis (with the Bonus calculated as of the end of the quarter in which
the Termination Date occurs and with proration through the Termination Date). If
Employee's employment hereunder is terminated by Employer pursuant to Section
2(iv) hereof, then, in addition to any other amount payable hereunder, Employer
shall continue to pay Employee his normal Salary pursuant to Section 3.1(a)
during the Termination Period (as defined below) in periodic payments (on the
same basis as if Employee continued to serve as an employee hereunder for such
period) and Employee shall continue to be eligible to receive his automobile
allowance and shall be entitled to have Employer pay his individual premiums for
his COBRA health insurance benefits during the Termination Period without any
additional expense to Employee. The "Termination Period" shall mean a period
that commences on the Termination Date and continues thereafter for twelve (12)
months.
If Employee's employment hereunder is terminated by Employer
pursuant to Section 2(ii)(E) for failure to meet quarterly or annual sales goals
or objectives established by Employer for Employee, then Employer shall continue
to pay Employee his normal Salary pursuant to Section 3.1(a) during the three
months immediately following the effective date of termination in periodic
payments (on the same basis as if Employee continued to serve as an employee
during such period).
If within sixty (60) days after the effective date of an
acquisition of Employer (by a merger, sale of assets, sale of stock, or
otherwise), Employer or its successor has not offered to Employee a position of
employment (under which employment Employee would have an office within a fifty
(50) mile radius of his home in Atlanta or a fifty (50) mile radius of the
Employer's
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office in Manchester, Georgia) that is mutually acceptable to Employee and
Employer or its successor, then Employee may thereafter resign from his
employment under Section 2(iii) above and in the event of such resignation
Employer or its successor shall continue to pay Employee his normal Salary
pursuant to Section 3.1(a) during the eighteen (18) month period immediately
after the effective date of such acquisition in periodic payments (on the same
basis as if Employee continued to serve as an employee hereunder for such
period) and Employee shall continue to be eligible to receive his automobile
allowance and shall be entitled to have Employer pay his individual premiums for
his COBRA health insurance benefits during such eighteen (18) months without any
additional expense to Employee.
3.3 STAY-PUT BONUS. In the event Employer is acquired by
a third party (by merger or other combination, purchase of assets, purchase of
stock, or otherwise (the "Acquisition")) and Employee remains an employee of
Employer through the effective closing date of the Acquisition, Employee shall
earn and be paid a bonus by Employer or its successor in the amount of Fifty
Thousand Dollars ($50,000.00). If earned, such bonus shall be paid to Employee
no later than ten (10) days after the effective closing date of the Acquisition.
SECTION 4 NON-COMPETE COVENANTS.
During the eighteen (18) month period described in the last paragraph
of Section 3.2 above, or the Termination Period described in the first paragraph
in Section 3.2, whichever may be applicable, Employee shall not, on his own
behalf or on behalf of others, engage within the United States in the sale or
marketing of implantable vascular access ports of hemodialysis catheters. During
the eighteen (18) month period described in the last paragraph of Section 3.2
above, or the Termination Period described in the first paragraph in Section
3.2, whichever may be applicable, Employee shall not, on his own behalf or on
behalf of others, hire or solicit for employment any person who at the time of
such hiring or solicitation is an employee of Employer.
SECTION 5 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
5.1 TRADE SECRETS. During the term of the Employee's
employment by the Employer and after the termination of such employment, whether
such termination is by the Employee or the Employer, the Employee shall not use
or disclose, or permit any unauthorized person access to, any Trade Secrets
belonging to the Employer or any third party whose Trade Secrets are in the
possession of the Employer.
5.2 CONFIDENTIAL INFORMATION. During the term of the
Employee's employment by the Employer and for a period of two (2) years after
termination of such employment, whether such termination is by the Employee or
by the Employer, the Employee
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shall not use or disclose, or permit any unauthorized person access to, any
Confidential Information belonging to the Employer or any third party whose
Confidential Information is in the possession of the Employer.
5.3 DELIVERY OF INFORMATION. Upon request of the Employer
and in any event upon the termination of employment with the Employer, the
Employee shall deliver to the Employer all memoranda, notes, records, tapes,
documentation, disks, manuals, files, or other documents, and all copies
thereof, concerning or containing Confidential Information or Trade Secrets that
are in the Employee's possession, whether made or compiled by the Employee or
furnished to the Employee by the Employer.
5.4 DEFINITION OF TRADE SECRETS. For purposes of this
Agreement, "Trade Secrets" shall refer to the trade secrets of the Employer as
that term is defined in the Official Code of Georgia Annotated, ss.10-1-761, as
amended from time to time. Trade Secrets also include any information described
herein which the Employer obtains from a third party, which Employer or such
third party treats as proprietary or designates as Trade Secrets, whether or not
owned or developed by the Employer.
5.5 DEFINITION OF CONFIDENTIAL INFORMATION. For purposes
of this Agreement, "Confidential Information" shall mean any data or
information, other than Trade Secrets, that is of value to the Employer and is
not generally known to competitors of the Employer and that is treated by the
Employer as confidential (whether or not such material or information is marked
"confidential"). To the extent consistent with the foregoing and to the extent
not Trade Secrets, Confidential Information includes, but is not limited to,
lists of any information about the Employer's executives and employees,
marketing techniques, price lists, pricing policies, business methods,
manufacturing processes and records, regulatory files and information, supplier
and vendor information and contracts, and financial information. Confidential
Information also includes any information described in this paragraph which the
Employer obtains from a third party, which the Employer or the third party
treats as proprietary or designates as Confidential Information, whether or not
owned or developed by the Employer.
SECTION 6 MISCELLANEOUS.
6.1 INDEMNIFICATION. Employee is entitled to
indemnification from Employer for claims against Employee in his capacity as an
officer or employee of Employer in the manner provided in the bylaws of Employer
and Georgia law.
6.2 SEVERABILITY. The covenants in this Agreement shall
be construed as covenants independent of one another and as obligations distinct
from any other contract between Employee and
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Employer. Any claim that Employee may have against Employer shall not constitute
a defense to enforcement by Employer of this Agreement.
6.3 NOTICES.
EMPLOYER: Horizon Medical Products, Inc.
ATTN: CHIEF EXECUTIVE OFFICER
Seven North Parkway Square
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
EMPLOYEE: Xxxxxx Xxxxxx
0000 Xxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
6.4 BINDING EFFECT. This Agreement inures to the benefit
of, and is binding upon, Employer and its successors and assigns, and Employee,
together with Employee's executor, administrator, personal representative,
heirs, and legatees.
6.5 ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto to be the final expression of their agreement with respect to the
subject matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements, or agreements to the
contrary heretofore made. This Agreement supersedes and terminates all prior
employment and compensation agreements, arrangements, and understandings between
or among Employer and Employee, including without limitation the Severance and
Bonus Agreement dated November 12, 1999 between Employee and Employer. This
Agreement may be modified only by a written instrument signed by all of the
parties hereto.
6.6 GOVERNING LAW. This Agreement shall be deemed to be
made in, and in all respects shall be interpreted, construed, and governed by
and in accordance with, the laws of the State of Georgia. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
6.7 HEADINGS. The section and paragraph headings
contained in this Agreement are for reference purposes only and
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shall not affect in any way the meaning or interpretation of this Agreement.
6.8 SPECIFIC PERFORMANCE. Each party hereto hereby
agrees that any remedy at law for any breach of the provisions contained in
Sections 4 or 5 of this Agreement shall be inadequate and that the other parties
hereto shall be entitled to specific performance and any other appropriate
injunctive relief in addition to any other remedy such party might have under
this Agreement or at law or in equity.
6.9 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HORIZON MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx.,
President
EMPLOYEE:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
