EXHIBIT 10.23
SEPARATION AGREEMENT
SEPARATION AGREEMENT (this "Agreement"), dated March 26, 2003,
by and between PEDIATRIX MEDICAL GROUP, INC., a Florida corporation (the
"Company") and XXXXXXX XXXXXXXX (the "Executive").
WHEREAS, the Executive is the President and Chief Executive
Officer of the Company and a member of its Board of Directors (the "Board"); and
WHEREAS, the parties have agreed that the Executive will
resign from all of his positions with the Company, its subsidiaries and its
affiliates, effective as of March 26, 2003, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, and other good and valuable consideration, the
receipt of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1. RESIGNATION
Effective March 26, 2003 (the "Termination Date"), the
Executive hereby resigns from all positions he holds with the Company, its
subsidiaries and its affiliates including, without limitation, the positions of
President and Chief Executive Officer of the Company and as a member of the
Board.
SECTION 2. SEPARATION BENEFITS
In full satisfaction of all the Company's obligations under
the Employment Agreement between the Company and the Executive, dated May 8,
2000 (the "Employment Agreement"), as well as any other compensatory agreement
between the Company and the Executive, the Company agrees to provide the
Executive with the following:
(i) SEVERANCE PAYMENTS. The Company shall provide the
Executive with severance pay in the aggregate amount of $200,000,
payable in four equal monthly installments of $50,000 each beginning
one month following the Termination Date. All such payments will be
subject to any applicable withholding tax. The Executive will have no
rights to severance payments from the Company except as provided in
this paragraph (i).
(ii) STOCK OPTIONS. All outstanding options to purchase shares
of the Company's common stock identified as "current" under the heading
"Options Vested" on Annex A hereto (the "Vested Options") shall remain
exercisable for three months following the Termination Date under the
terms of such options. The Executive shall have the right to exercise
only the Vested Options, and such Vested Options shall be exercisable
in a manner that is no less favorable than is made generally available
to other executives of the Company.
(iii) HEALTH BENEFITS. The Company shall provide the Executive
and his eligible dependants with continuation of heath, medical,
hospitalization and other programs for a period of four months
following the Termination Date at the same employee cost that applies
to senior executives of the Company. Following the expiration of this
four month period, the Executive will be entitled to any coverage
required by applicable law.
(iv) ACCRUED RIGHTS. The Executive shall be entitled to all
rights accrued and vested through the Termination Date under the terms
of any of the Company's employee benefit plans, practices, programs and
arrangements he participated in prior to the Termination Date (other
than any severance benefits). The Executive shall also be entitled to
(i) payment of his base salary at its current rate through the
Termination Date and (ii) payment of any unreimbursed business expenses
under the terms of the Employment Agreement.
SECTION 3. MISCELLANEOUS
(a) NO MITIGATION OR OFFSET. The Executive shall have no
obligation to mitigate the Company's obligations provided under Section 2 hereof
by seeking substitute employment or otherwise and there shall be no offset of
the payments or benefits provided therein from compensation provided from future
employment.
(b) PRESS RELEASE. The Company agrees to issue a press release
in substantially the form annexed hereto as Annex B on the business day
following the Termination Date.
(c) PERSONAL ITEMS. The Company will provide the Executive
with a reasonable opportunity to remove his personal items from his office
following the Termination Date.
(d) COMPLETE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and cancels and supersedes all other agreements
and understandings, whether written or oral, between the parties which may have
related to the subject matter contained in this Agreement, including, without
limitation, the Employment Agreement. Notwithstanding the foregoing, this
Agreement shall not cancel or supersede (i) any stock option agreements relating
to the Vested Options, (ii) the Company's Amended and Restated Stock Option Plan
(the "Option Plan"), as incorporated into such stock option agreements and (iii)
Section 8 of the Employment Agreement which shall remain in full force and
effect with the Termination Date treated as the date of the termination of the
Employment Agreement. In the event of a conflict between a stock option
agreement or the Option Plan and this Agreement, the terms of this Agreement
shall control.
(e) AMENDMENT; WAIVER. No modification, amendment or waiver of
any provisions of this Agreement shall be effective unless approved in writing
by each of the parties hereto. The failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to enforce
each and every provision hereof in accordance with its terms.
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(f) GOVERNING LAW; JURISDICTION. This Agreement and
performance under it, and all proceedings that may ensue from its breach, shall
be construed in accordance with and under the laws of the State of Florida, and
the parties submit to the jurisdiction of the courts of the State of Florida for
purposes of any actions or proceedings that may be required to enforce this
Agreement.
(g) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
PEDIATRIX MEDICAL GROUP, INC.
By /s/ Xxxxx X. Xxxxx, M.D.
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Title Chairman of the Board and Chief
Executive Officer
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EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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