EXHIBIT 10.60
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") is made and
entered into as of February 25, 2004, by and between Xxxxxx 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, as amended by Amendment to Employment Agreement
dated November 12, 2002, and as amended by Amendment to Employment Agreement
dated October 21, 2003 (collectively, 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 in their
entirety subsections (b)(i), (b)(ii), and (b)(iii) at the end of Section 3.1(b)
and by inserting in lieu thereof the following subsections (b)(i), (b)(ii), and
(b)(iii) at the end of Section 3.1(b):
(i) For fiscal year 2004, Employee will be entitled to a
quarterly bonus (the "2004 Bonus"), based upon Employer's achievement
during each calendar quarter of 2004 of net sales and EBITDA under
Employer's operating plan for 2004 that has been approved by the Board
of Directors of Employer (the "2004 Operating Plan"), as follows:
(A) If Employer's actual net sales during the calendar
quarter in 2004 are ninety-four percent (94%) or
greater than, but less than one hundred percent
(100%) of, the net sales for the same calendar
quarter in 2004 as reflected in the 2004 Operating
Plan, then Employee will be entitled to a 2004 Bonus
for such calendar quarter under this subparagraph (A)
calculated under the formula X times Y, where X is
$25,000.00 and Y is 25%. If Employer's actual net
sales during the calendar quarter in 2004 are one
hundred percent (100%) or greater than the net sales
for the same calendar quarter in 2004 as reflected in
the 2004 Operating Plan, then Employee will be
entitled to a 2004 Bonus for such calendar quarter
under this
subparagraph (A) calculated under the formula X times
Y, where X is $25,000.00 and Y is 50%.
(B) If the Employer's actual EBITDA for the calendar
quarter in 2004 is seventy-five percent (75%) or
greater than, but less than one hundred percent
(100%) of, EBITDA for the same calendar quarter in
2004 as reflected in the 2004 Operating Plan, then
Employee will be entitled to a 2004 Bonus for such
calendar quarter under this subparagraph (B)
calculated under the formula X times Y, where X is
$25,000.00 and Y is 25%. If Employer's actual EBITDA
for the calendar quarter in 2004 is one hundred
percent (100%) or greater than the EBITDA for the
same calendar quarter in 2004 as reflected in the
2004 Operating Plan, then Employee will be entitled
to a 2004 Bonus for such calendar quarter under this
subparagraph (B) calculated under the formula X times
Y, where X is $25,000.00 and Y is 50%.
(C) For purposes of the 2004 Bonus, in the event Employer
sells a product line or division during 2004 or in
the event that Employer is acquired by a third party
during 2004, then the 2004 Bonus for the quarter in
which such event occurs shall be calculated using
actual net sales and EBITDA through the month end
immediately prior to such sale or acquisition and
using net sales and EBITDA under the 2004 Operating
Plan through such month end.
(D) The 2004 Bonus, if earned for any quarter in 2004,
will be payable to Employee on the next pay period
after the financial statements for such quarter are
finalized.
(ii) For the first three quarters of fiscal year 2005,
Employee will be entitled to a quarterly bonus (the "2005 Bonus"),
based upon Employer's achievement during each calendar quarter of 2005
of net sales and EBITDA under Employer's operating plan for 2005 that
has been approved by the Board of Directors of Employer (the "2005
Operating Plan"), as follows:
(A) If Employer's actual net sales during the calendar
quarter in 2005 are ninety-four percent (94%) or
greater than, but less than one hundred percent
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(100%) of, the net sales for the same calendar
quarter in 2005 as reflected in the 2005 Operating
Plan, then Employee will be entitled to a 2005 Bonus
for such calendar quarter under this subparagraph (A)
calculated under the formula X times Y, where X is
$30,000.00 and Y is 25%. If Employer's actual net
sales during the calendar quarter in 2005 are one
hundred percent (100%) or greater than the net sales
for the same calendar quarter in 2005 as reflected in
the 2005 Operating Plan, then Employee will be
entitled to a 2005 Bonus for such calendar quarter
under this subparagraph (A) calculated under the
formula X times Y, where X is $30,000.00 and Y is
50%.
(B) If the Employer's actual EBITDA for the calendar
quarter in 2005 is seventy-five percent (75%) or
greater than, but less than one hundred percent
(100%) of, EBITDA for the same calendar quarter in
2005 as reflected in the 2005 Operating Plan, then
Employee will be entitled to a 2005 Bonus for such
calendar quarter under this subparagraph (B)
calculated under the formula X times Y, where X is
$30,000.00 and Y is 25%. If Employer's actual EBITDA
for the calendar quarter in 2005 is one hundred
percent (100%) or greater than the EBITDA for the
same calendar quarter in 2005 as reflected in the
2005 Operating Plan, then Employee will be entitled
to a 2005 Bonus for such calendar quarter under this
subparagraph (B) calculated under the formula X times
Y, where X is $30,000.00 and Y is 50%.
(C) For purposes of the 2005 Bonus, in the event Employer
sells a product line or division during 2005 or in
the event that Employer is acquired by a third party
during 2005, then the 2005 Bonus for the quarter in
which such event occurs shall be calculated using
actual net sales and EBITDA through the month end
immediately prior to such sale or acquisition and
using net sales and EBITDA under the 2005 Operating
Plan through such month end.
(D) The 2005 Bonus, if earned for any quarter in 2005,
will be payable to Employee on the next pay period
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after the financial statements for such quarter are
finalized.
(iii) For the period from October 1, 2005 through October 31,
2005, the Compensation Committee of the Board of Directors shall
determine in its sole discretion the bonus compensation of Employee
for such month.
2. The provisions of this Amendment shall become effective on the date
of this Amendment. 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 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/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx,
Corporate Controller
EMPLOYEE:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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