Exhibit 10.43
AMENDMENT TO NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDMENT to Non-Qualified Stock Option Agreement ("Amendment")
is made and entered into as of November 15, 2002 by and between Xxxxxxxx X.
Xxxx (the "Optionee") and Horizon Medical Products, Inc. (the "Company");
WHEREAS, Optionee and Company entered into that certain Non-Qualified
Stock Option Agreement dated March 15, 2002 (the "Option Agreement") and desire
to amend the Option Agreement in the manner hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for 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 Option Agreement is hereby amended by deleting clause (1)
in Section 2(b) of the Option Agreement in its entirety and by substituting in
lieu thereof a new clause (1) of Section 2(b), as follows:
(1) January 1, 2004, with respect to such number of
shares as is described in the paragraph below; . . .
The number of options that will vest under
clause (1) above will be based upon the Company's achievement
during 2003 of EBITDA under the Company's operating plan for
2003 that has been approved by the Board of Directors of the
Company (the "Operating Plan"), as follows: If the Company's
actual EBITDA for 2003 is greater than fifty percent (50%) of
EBITDA for 2003 as reflected in the Operating Plan, then the
number of shares which will vest will be calculated under the
formula X times the Vesting Percentage, where X is 1,000,000.
The Vesting Percentage is determined by dividing actual
EBITDA for 2003 by Operating Plan EBITDA for 2003; where the
result of such division is greater than 50%, but less than
76%, the Vesting Percentage is 50%, where the result of such
division is 76% or more, but less than 100%, the Vesting
Percentage is 75%, and where the result of such division is
100% or greater, the Vesting Percentage is 100%.
2. Except as expressly amended above, all other provisions of
the Option Agreement shall remain in full force and effect. This Amendment
inures to the benefit of, and is binding upon, the Company and its respective
successors and assigns and Optionee, together with Optionee'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
Option Agreement, this Amendment supersedes and terminates all prior agreements
and understandings between the Company and Optionee 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 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. This
Amendment 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment 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
OPTIONEE:
/s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
