EXHIBIT 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") is made and
entered into as of June 21, 2003 by and between Xxxxxx X. 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, Employee and Employer entered into that certain Employment
Agreement dated June 21, 2001 (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 lead-in language of Section 2 of the Employment
Agreement, prior to subsection (i) of Section 2, is hereby deleted in its
entirety and the following lead-in language is hereby inserted in Section 2 in
lieu thereof:
The term of Employee's employment hereunder (the
"Term") shall be from June 21, 2003 (the "Effective Date")
until the earlier of (i) June 21, 2004, or (ii) the
occurrence of any of the following events: . . .
2. Section 2(ii)(E) of the Employment Agreement is hereby
amended by deleting such subsection in its entirety from the Employment
Agreement.
3. Section 2(iii) of the Employment Agreement is hereby amended
by deleting therefrom the phrase "ninety (90) days" and inserting in lieu
thereof the phrase "sixty (60) days".
4. Section 2(iv) of the Employment Agreement is hereby amended
by deleting therefrom the phrase "thirty (30) days" and inserting in lieu
thereof the phrase "sixty (60) days".
5. Section 3.1(a) of the Employment Agreement is hereby amended
by deleting the first sentence in Section 3.1(a) from the Employment Agreement
and by inserting in lieu thereof the following first sentence:
Commencing on June 21, 2003 and for the remainder of
the Term of employment hereunder, the Salary shall be One
Hundred Sixty Thousand Dollars ($160,000.00) per annum, less
deductions and withholdings required by applicable law.
6. Section 3.1(b) of the Employment Agreement is hereby amended
by deleting Section 3.1(b) from the Employment Agreement and by inserting in
lieu thereof the following Section 3.1(b):
(b) Bonus. For each calendar quarter during the
Term, including the second quarter of 2003 and the second
quarter of 2004, Employee shall be eligible to earn a maximum
bonus of Ten Thousand Dollars ($10,000.00) based upon the
applicable bonus program established for Employee by Employer
for such calendar quarter where the bonus amount is dependent
upon both Employer's performance for the quarter in terms of
revenue and EBITDA and upon Employee's achievement of
quarterly management business objectives for the quarter
established by the Chief Operating Officer for Employee. Any
bonus earned by Employee for a calendar quarter will be paid
within thirty (30) to forty-five (45) days after the end of
such quarter.
7. Section 3.1(c) of the Employment Agreement is hereby amended
by changing the amount of $500.00 in such Section 3.1(c) to $600.00, effective
June 21, 2003.
8. The Termination Period provided for in the last sentence of
the first paragraph in Section 3.2 of the Employment Agreement is hereby
amended by deleting the phrase "twelve (12) months" and inserting in lieu
thereof the phrase "six (6) months". The eighteen (18) month period for
severance that is referred to twice in the last paragraph in Section 3.2 of the
Employment Agreement is hereby amended by deleting such eighteen (18) months
and inserting in lieu thereof the period of six (6) months for such severance
period.
9. The second paragraph in Section 3.2 of the Employment
Agreement is hereby amended by deleting such paragraph in its entirety and by
inserting in lieu thereof the following paragraphs:
If Employee's employment with Employer continues
after the Term and Employee does not have an employment
agreement with Employer then in effect and Employee's
employment with Employer is terminated by Employer without
good cause (with "good cause" defined in Section 2(ii)
above), then Employer shall continue to pay Employee the
Salary for the Termination Period (as defined below) in
periodic payments (on the same basis as if Employee continued
to serve as an employee for such period), and Employee shall
continue to be eligible to receive the automobile allowance
described in Section 3.1(c) above and shall be entitled to
have Employer pay his individual premiums for his COBRA
health insurance benefits during such Termination Period
without any additional expense to Employee. For purposes of
this paragraph only, the Termination Period shall mean a
period that commences on the effective date of
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termination of Employee's employment by Employer without good
cause and continues thereafter for six (6) months. In
consideration for receiving such severance benefits, Employee
shall comply with the provisions of Section 4 below during
the Termination Period.
If Employee's employment hereunder is terminated by
Employer pursuant to Section 2(ii) above for good cause, then
Employer shall continue to pay Employee his normal Salary
pursuant to Section 3.1(a) during the sixty (60) days
immediately following the effective date of termination of
employment under Section 2(ii), in periodic payments (on the
same basis as if Employee continued to serve as an employee
during such period).
10. Section 4 of the Employment Agreement is hereby amended by
deleting such Section 4 in its entirety and by inserting in lieu thereof the
following new Section 4:
Section 4. Non-Compete Covenants.
During the six (6) month period after the effective
date of his last date of employment hereunder, 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, hemodialysis catheters, central venous
catheters, or implantable pumps used for delivery of hepatic
arterial infusion treatment. During the six (6) month period
after the effective date of his last date of employment
hereunder, 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.
11. 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. 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.
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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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