Exhibit 10.44
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") is made and
entered into as of November 12, 2002, by and between Xxxxxx X. Xxxxxx, an
individual resident of the State of Minnesota ("Employee"), and Horizon Medical
Products, Inc., a Georgia corporation ("Employer");
WITNESSETH:
WHEREAS, Employee and Employer entered into that certain Employment
Agreement dated May 8, 2002 (the "Employment Agreement") and desire to amend
the Employment Agreement in the manner hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto intending to be legally bound hereby agree as follows:
1. The Employment Agreement is hereby amended by deleting the
first paragraph in Section 2 in its entirety and by substituting in lieu
thereof the following first paragraph in Section 2:
The term of Employee's employment hereunder (the
"Term") shall be from May 8, 2002 (the "Effective Date")
until termination upon the occurrence of any of the following
events, provided that the Term shall expire on December 31,
2003 if not previously terminated:
2. The Employment Agreement is hereby amended by deleting
subsection (a) in Section 3.1 in its entirety and by substituting in lieu
thereof the following subsection (a) in Section 3.1:
(A) SALARY. During the period from the Effective Date
through December 31, 2002, Employee will be paid a
salary (the "Salary") of no less than Two Hundred
Thousand Dollars ($200,000.00) per annum, less
deductions and withholdings required by applicable
law, prorated during such period. Thereafter,
Employee will be paid a Salary of no less than Two
Hundred Twenty-Five Thousand Dollars ($225,000.00)
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).
3. The Employment Agreement is hereby amended by inserting the
following new paragraph at the end of Section 3.1(b):
For Employer's 2003 fiscal year, Employee will
receive a quarterly bonus of Twenty Thousand Dollars
($20,000.00) for each calendar quarter during 2003 if the
MBOs established for Employee by the Chief Executive Officer
of Employer and by the Executive Committee of the Board of
Directors of Employer, both for the quarter in question and
for the year-to-date through the end of such quarter, are
satisfied. If such bonus is earned, it will be payable to
Employee on the date on which Employer's financial statements
for such quarter are finalized.
4. The Employment Agreement is hereby amended by deleting the
last paragraph in Section 3.2 in its entirety and by inserting in lieu thereof
the following paragraphs at the end of Section 3.2:
If Employee's employment hereunder is terminated by
Employer pursuant to Section 2(d) hereof, or if Employee
continues his employment with Employer after December 31,
2003 and such employment is then terminated at any time by
Employer for any reason other than good cause (as defined in
Section 2(b) above), then, in any such event 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 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.
The provisions of this Section 3.2 shall survive any
termination or expiration of the Term of Employee's
employment hereunder.
5. During 2003, the Chief Executive Officer of Employer may in
his sole discretion request the Board of Directors or the Executive Committee
of the Board of Directors of Employer to elect Employee as President of
Employer in addition to his current officer position of Chief Operating
Officer.
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6. Section 4 of the Employment Agreement is hereby amended by
changing the number of shares in the first sentence from 225,000 shares to
250,000 shares and by inserting the following new paragraph at the end of
Section 4:
The Executive Committee of the Board of Directors of
Employer will grant to Employee additional options to
purchase Three Hundred Fifty Thousand (350,000) shares of
common stock of Employer under and subject to the Plan and
conditioned upon Employee's execution of this Amendment to
Employment Agreement. Under the Plan, the option price will
be the closing stock price on the day on which the options
are granted by the Executive Committee. In the event that
Employee executes this Amendment to Employment Agreement,
then the option for such 350,000 shares shall vest and become
exercisable under and subject to the Plan in increments as
follows: 70,945 shares on December 31, 2003 if Employee is an
employee of Employer on such date, 70,945 shares on December
31, 2004 if Employee is an employee of Employer on such date,
and the remaining 208,110 shares on December 31, 2005 if
Employee is an employee of Employer on such date. Upon a
Change in Control (as defined in the Plan) during 2003 or
thereafter, all unvested options then held by Employee shall
vest in full immediately prior to the occurrence of such
Change in Control if Employee is an employee of Employer on
the date of such vesting. Upon Employer's termination of
Employee's employment pursuant to Section 2(d) above, all
unvested options then held by Employee shall vest in full on
the date of notice under Section 2(d) above.
7. Section 2A of the Employment Agreement is hereby deleted in
its entirety from the Employment Agreement. In the fourth sentence in Section 4
of the Employment Agreement, the phrase "In the event that the Term is renewed
pursuant to Section 2A above, then" is hereby deleted.
8. Except as expressly amended above, all other provisions of
the Employment Agreement shall remain in full force and effect. This Amendment
inures to the benefit of, and is binding upon, Employer and its respective
successors and assigns and Employee, together with Employee's executor,
administrator, personal representatives, heirs, and legatees. This Amendment 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. Except for the
Employment Agreement, this Amendment supersedes and terminates all prior
agreements and understandings between Employer and Employee concerning the
subject matter of this Amendment. This Amendment may be modified only by a
written instrument signed by all of the parties hereto. This Amendment
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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 without reference to its conflicts of law principles. This Amendment
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 Amendment as
of the date first above written.
HORIZON MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx,
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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