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EXHIBIT 10.4
SEVERANCE AND BONUS AGREEMENT
THIS AGREEMENT is made and entered into as of November 12, 1999, by
and between Xxxxxx Xxxxxx, an individual resident of the State of Georgia
("Employee"), and Horizon Medical Products, Inc., a Georgia corporation
("Employer").
W I T N E S S E T H:
WHEREAS, Employee is currently employed by Employer, and Employer
desires to provide for severance compensation for Employee in the event
Employee's employment is terminated without good cause after an Acquisition of
Employer, under the terms and conditions set forth below;
WHEREAS, Employer desires to retain Employee's services and employment
with Employer through the date of any acquisition of Employer by payment of a
stay-put bonus under the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, for Employee's continued employment
with Employer, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. SEVERANCE COMPENSATION.
(a) Upon the occurrence of either one of the following events after an
Acquisition (as defined below), then Employer or its successor shall pay to
Employee severance compensation in the amount of One Hundred Twenty-One Thousand
and No/100 Dollars ($121,000.00) in equal monthly payments over a twelve (12)
month period that commences with the effective date of termination or
resignation, as the case may be (such period referred to as the "Term"):
(i) If Employee continues his employment with
Employer through the effective date of an Acquisition and
after the Acquisition Employee's employment is terminated by
Employer or its successor for any reason other than for good
cause (as defined below); or
(ii) If within thirty (30) days after the closing of
an Acquisition Employer or its successor has not offered to
Employee a position of employment (under which employment
Employee would office within a fifty (50) mile radius of his
current home in Georgia) that is mutually acceptable to
Employee and Employer or its successor, and thereafter
Employee resigns from his employment with Employer or its
successor.
(b) The severance compensation shall be payable in equal semi-monthly
installments during the Term, less deductions and withholdings required by
applicable law.
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(c) For purposes of this Agreement, "good cause" for termination of
Employee's employment shall exist (i) if Employee is convicted of, pleads guilty
to, or confesses to any felony or act of fraud, misappropriation, or
embezzlement, or (ii) if Employee has engaged in a dishonest act to the material
damage or prejudice of Employer or its successor, or in conduct or activities
materially damaging to the business of Employer or its successor.
(d) If during the Term, Employee violates any provision in Section 3
below, Employee shall not be entitled to any of such severance compensation.
SECTION 2. 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"), Employee shall earn and be paid a stay-put bonus by Employer or
its successor in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) if
Employee remains an employee of Employer through the effective time of the
Acquisition. The stay-put bonus, if earned under the preceding sentence, shall
be paid to Employee no later than ten (10) days after the effective date of the
Acquisition.
SECTION 3. NON-COMPETITION AND NON-SOLICITATION OF EMPLOYEES.
(a) During the Term, Employee shall not, on his own behalf or on behalf
of others, engage within the Territory in the sale or marketing of products that
compete with any product that Employer is selling on the effective date of the
Acquisition.
(b) The Territory for purposes of this Section 3 shall be the United
States.
(c) During the Term, Employee, on his behalf or on behalf of others,
shall not hire or induce or solicit to leave employment with Employer or its
successor any employee who is an employee of Employer or its successor during
the Term.
SECTION 4. NOT EMPLOYMENT AGREEMENT.
This Agreement does not constitute an employment agreement and does not
give Employee the right to any term of employment. The employment of Employee
remains an employment at will.
SECTION 5. EQUITABLE RELIEF.
The parties acknowledge and agree that a breach or threat to breach the
provisions of Section 3 hereof by Employee would result in material and
irreparable damage and injury to Employer or its successor and that it would be
difficult or impossible to establish the full monetary value of such damage.
Therefore, Employer or its successor shall be entitled to injunctive relief by a
court of competent jurisdiction if
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Employee breaches or threatens to breach any such term or provision.
SECTION 6. MISCELLANEOUS.
(a) If any term of this Agreement is held to be illegal, invalid, or
unenforceable by a court of competent jurisdiction, the remaining terms shall
remain in full force and effect.
(b) No waiver by Employer of any provision hereof will be deemed a
waiver of any prior or subsequent breach of the same or any other provision.
Failure of Employer to exercise any right provided herein shall not be deemed on
any subsequent occasions to be a waiver of any right granted hereunder to
Employer.
(c) This Agreement shall inure to the benefit of, and is binding upon,
Employer and its successors and assigns and Employee, together with Employee's
executor, administrator, personal representative, and heirs.
(d) 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 hereof, notwithstanding any
representations, statements, or agreements to the contrary heretofore made;
provided, however, that if Employer and Employee have previously entered into a
non-competition and non-disclosure agreement, such agreement shall survive and
continue to be enforceable after the date hereof. This Agreement may be modified
only by a written instrument signed by all the parties hereto.
(e) 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.
(f) The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(g) 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.
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By:
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Title:
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EMPLOYEE:
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Xxxxxx Xxxxxx
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