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Exhibit 10.35
AMENDMENT NO. 1 TO
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EMPLOYMENT AGREEMENT
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THIS AMENDMENT entered into this 15th day of March, 1997, by and
between Pediatrix Medical Group, Inc., a Florida corporation (the "Company"),
and Xxxxxxx Xxxxxxxx (the "Executive"), amends the Employment Agreement (the
"Agreement") entered into on the 6th day of November, 1995 by and between the
Company and the Executive.
W I T N E S S E T H:
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WHEREAS, the Company and the Executive desire to amend the Agreement as
hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth in the Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive hereby agree as follows:
1. Section 2.3 of the Agreement in its present form shall be deleted in
its entirety and a new Section 2.3 shall be substituted therefor as follows:
2.3 INCENTIVE BONUS. Executive shall be entitled to receive an
incentive bonus as set forth in that certain Incentive Plan in the form attached
hereto as Exhibit A.
2. Except as expressly amended hereby, the Agreement remains in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Employment Agreement the day and year first above written.
PEDIATRIX MEDICAL GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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EXHIBIT A
INCENTIVE PLAN
FOR XXXXXXX XXXXXXXX
SECTION 1. PURPOSE OF PLAN
The purpose of the Plan is to promote the success of the Company by
providing to the Executive bonus incentives that qualify as performance-based
compensation within the meaning of Section 162(m) of the Code.
SECTION 2. DEFINITIONS AND TERMS
2.1. ACCOUNTING TERMS. Except as otherwise expressly provided or the
context otherwise requires, financial and accounting terms are used as defined
for purposes of, and shall be determined in accordance with, generally accepted
accounting principles, as from time to time in effect, as applied and reflected
in the consolidated financial statements of the Company, prepared in the
ordinary course of business.
2.2. SPECIFIC TERMS. The following words and phrases as used herein
shall have the following meanings unless a different meaning is plainly required
by the context:
"BONUS" means the incentive bonus as determined under Section
4.1.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITTEE" means the Compensation Committee which has been
established to administer the Plan in accordance with Section 3.1 and
Section 162(m) of the Code.
"COMPANY" means Pediatrix Medical Group, Inc. and any successor
whether by merger, ownership of all or substantially all of its assets
or otherwise.
"EMPLOYMENT AGREEMENT" means the Employment Agreement, dated
November 6, 1995, between the Company and the Executive, or any
amendment to or renewal of such Employment Agreement or any new
employment agreement entered into with the Executive.
"EXECUTIVE" means Xxxxxxx Xxxxxxxx.
"GROSS PROFIT" means net patient service revenue less direct
costs of the merged/acquired business in which revenue and costs are
determined following the customary procedures of the Company.
"MERGER/ACQUISITIONS" means all business transactions wherein
the Company or any of its affiliates acquires a medical practice
through a merger or a stock or asset purchase or other similar
transaction and excludes internal growth of the Company through hospital
contracts without the acquisition/merger of a corresponding physician
practice.
"PLAN" means this Incentive Plan for Xxxxxxx Xxxxxxxx, as
amended from time to time.
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"SECTION 162(M)" means Section 162(m) of the Code, and the
regulations promulgated thereunder, all as amended from time to time.
SECTION 3. ADMINISTRATION OF THE PLAN
3.1. THE COMMITTEE. The Plan shall be administered by a Committee
consisting of at least two members of the Board of Directors of the Company,
duly authorized by the Board of Directors of the Company to administer the Plan,
who (i) are not eligible to participate in the Plan and (ii) are "outside
directors" within the meaning of Section 162(m).
3.2. POWERS OF THE COMMITTEE. The Committee shall have the authority
to construe and interpret the Plan (except as otherwise provided herein), may
adopt rules and regulations governing the administration of the Plan, and shall
exercise all other duties and powers conferred on it by the Plan, or which are
incidental or ancillary thereto.
3.3. REQUISITE ACTION. A majority (but not fewer than two) of the
members of the Committee shall constitute a quorum. The vote of a majority of
those present at a meeting at which a quorum is present or the unanimous written
consent of the Committee shall constitute action by the Committee.
SECTION 4. BONUS PROVISIONS.
4.1. PROVISION FOR BONUS. Executive shall receive as an incentive
bonus an amount equal to five percent (5%) of the initial fiscal year "Gross
Profit" of any and all "mergers/acquisitions" consummated during the term of
this Agreement. Payment of said incentive shall be implemented as follows:
Executive shall receive 2 1/2% (two and one-half percent) of the projected Gross
Profit for the initial fiscal year from each consummated merger and/or
acquisition in the month immediately succeeding the closing of the merger and/or
acquisition (the "Initial Payment"). Additionally, at the end of the initial
fiscal year of the merger and/or acquisition upon closure of the accounting
period, Executive shall receive an additional 2 1/2% (two and one-half percent)
of the actual Gross Profit for the initial fiscal year from each consummated
merger and/or acquisition (the "Additional Payment"). It is understood and
agreed by Employer and Executive this incentive bonus may be adjusted upward or
downward based upon the actual Gross Profit obtained as compared to the
projected Gross Profit for the initial fiscal year.
4.2. COMMITTEE CERTIFICATION. The Executive shall not receive any
payment, other than the Initial Payment, under the Plan unless the Committee has
certified, by resolution or other appropriate action in writing, that the amount
thereof has been accurately determined in accordance with the terms and
conditions of the Plan.
4.3. TIME OF PAYMENT. Each Additional Payment under Section 4.1
shall be paid as soon as practicable following the Committee's determinations
under this Section 4 and the certification of the Committee's findings under
Section 4.2. Any payments of Bonuses under this Plan shall be in cash or cash
equivalent, subject to applicable withholding requirements.
SECTION 5. GENERAL PROVISIONS
5.1. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the establishment of
the Plan nor the provision for or payment of any amounts hereunder nor any
action of the Company (including, for purposes of this Section 5.1, any
predecessor or subsidiary), the Board of Directors of the Company or
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the Committee in respect of the Plan, shall be held or construed to confer upon
the Executive any legal right to be continued in the employ of the Company.
5.2. COMPENSATION UPON TERMINATION. If Executive is terminated for
any reason other than Cause (as defined in Section 4.1(a) of the Employment
Agreement), the Executive shall also be paid, for services rendered prior to
termination, an amount equal to the amount due Executive under Section 4.1 for
all mergers/acquisitions consummated prior to Executive's termination and unpaid
at the time of termination. It is understood and agreed that the amounts will be
paid to Executive without proration. Any Bonus payable to the Executive after
termination of his employment shall be paid to the Executive at such time as the
Executive would have received the Bonus if no termination of employment had
occurred.
5.3. DISCRETION OF COMPANY, BOARD OF DIRECTORS AND COMMITTEE. Any
decision made or action taken by the Company or by the Board of Directors of the
Company or by the Committee arising out of or in connection with the creation,
amendment, construction, administration, interpretation and effect of the Plan
shall be within the absolute discretion of such entity and shall be conclusive
and binding upon all persons. No member of the Committee shall have any
liability for actions taken or omitted under the Plan by the member or any other
person.
5.4. ABSENCE OF LIABILITY. A member of the Board of Directors of the
Company or a member of the Committee of the Company or any officer of the
Company shall not be liable for any act or inaction hereunder, whether of
commission or omission.
5.5. NO FUNDING OF PLAN. The Company shall not be required to fund
or otherwise segregate any cash or any other assets which may at any time be
paid to Participants under the Plan. The Plan shall constitute an "unfunded"
plan of the Company. The Company shall not, by any provisions of the Plan, be
deemed to be a trustee of any property, and any obligations of the Company to
the Executive under the Plan shall be those of a debtor and any rights of the
Executive shall be limited to those of a general unsecured creditor.
5.6. NON-TRANSFERABILITY OF BENEFITS AND INTERESTS. Except as
expressly provided by the Committee, no benefit payable under the Plan shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any such attempted action shall be void and
no such benefit shall be in any manner liable for or subject to debts,
contracts, liabilities, engagements or torts of the Executive. This Section 5.6
shall not apply to an assignment of a contingency or payment due after the death
of the Executive to the deceased Executive's legal representative or
beneficiary.
5.7. LAW TO GOVERN. All questions pertaining to the construction,
regulation, validity and effect of the provisions of the Plan shall be
determined in accordance with the laws of the State of Florida.
5.8. NON-EXCLUSIVITY. The Plan does not limit the authority of the
Company, the Board or the Committee, or any subsidiary of the Company, to grant
awards or authorize any other compensation under any other plan.
SECTION 6. AMENDMENT OF PLAN; TERM
No amendment may be effective without Board of Directors and/or
shareholder approval if such approval is necessary to comply with the applicable
rules under Section 162(m) of the Code. The term of the Plan shall be for a
period of ten years. The Executive shall be entitled to participate in the Plan
as long as the Employment Agreement is in effect.
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