Exhibit 10.4
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made and
entered into as of May 30, 2003 by and between Pediatrix Medical Group, Inc.
(the "Company") and Xxxxx X. Xxxxxx ("Consultant") (collectively the "Parties).
WHEREAS, Consultant and the Company are parties to an Amended
and Restated Employment Agreement dated as of January 1, 2003 (the "Employment
Agreement"), under which the Consultant agreed to serve the Company as Executive
Vice President, Corporate Development and General Counsel;
WHEREAS, the Company and Consultant have entered into a
Separation and Severance Agreement of even date herewith pursuant to which their
respective obligations under the Employment Agreement and the terms and timing
of the termination of Consultant's services pursuant to the Employment Agreement
have been resolved; and
WHEREAS, the parties acknowledge that Consultant maintains
valuable knowledge, expertise and confidential information about the Company's
business and business relationships;
WHEREAS, the Company wishes to retain the services of
Consultant to provide advisory and consulting services, and Consultant wishes to
accept such engagement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, the adequacy and sufficiency of which are hereby
acknowledged, Consultant and the Company agree as follows:
Services to be Provided. The Company hereby engages Consultant
to provide the following services, none of which shall include or constitute the
provision of legal advice or the practice of law:
(a). Assist the Company's Senior Management in the
implementation of a plan of transition following Consultant's departure
as an employee of the Company;
(b). Assist the Company's Senior Management in
evaluating business development opportunities and in researching,
analyzing, evaluating and addressing regulatory affairs affecting the
Company's business; and
(c). Provide such other services and perform such
other duties as may be reasonably requested by the Company's General
Counsel.
The foregoing services are referred to herein as the "Services." Consultant
shall perform Services of such nature, and at such places and times, as may be
mutually agreed to by Consultant and the Company's General Counsel, PROVIDED
THAT Consultant shall not be required to provide Services for an aggregate
period of more than ten calendar days in any one month during the Term (as
defined in Paragraph 4 below) hereof. Consultant shall be free to dispose of his
time, energy and skill in such a manner as he deems advisable, and shall also be
free to provide services to or for such other persons, firms and entities as he
may desire.
Working Facilities and Supplies. During the Term hereof, the
Company shall furnish the Consultant with such office space, support staff and
equipment (including laptop computer, and access to the Company's offices, Email
and intranet) as may be necessary for the performance of his duties hereunder.
Travel and Expense Reimbursement. The Consultant shall be
entitled to reimbursement for all reasonable expenses that may be paid or
incurred by the Consultant in the course of and pursuant to the business of the
Company, including expenses for travel and entertainment. Travel and expense
reimbursement policies shall be on the same terms and conditions applicable to
Consultant in his role as Executive Vice President, Corporate Development and
General Counsel of the Company during the period immediately preceding
termination of the Employment Agreement.
Term and Termination of Agreement. The Company hereby engages
Consultant for a period commencing June 5, 2003, and ending July 31, 2003 (the
"Term"). This Agreement will automatically renew on a month to month basis
unless either Party gives written notice of non-renewal at least seven calendar
days before the end of the Term. Additionally, this
Agreement may be terminated at any time by either party upon seven calendar days
notice to the other. Consultant's services to the Company, and the Company's and
Consultant's obligations to each other hereunder, shall terminate simultaneously
with the termination of this Agreement.
Consulting Fees. The Company shall pay the Consultant for the
performance of Services at the hourly rate of Three Hundred Dollars ($300.00).
The Consulting Fees shall be paid on the 15th day of the month immediately
following the month during which such services are provided.
Independent Contractor. Consultant, in the performance of
Services, will act as an independent Contractor to the Company, and will not be
considered an employee for any purpose. Consultant is not entitled to receive
Company employee benefits as a result of, or pursuant to, this Agreement. Solely
with respect to compensation pursuant to this Agreement, Company is not
responsible for payment of workers' compensation, disability or other similar
benefits, unemployment or other insurance, or for withholding income or other
similar taxes or Social Security tax for Consultant, as Consultant shall bear
such responsibilities.
Indemnification. To the fullest extent permissible under
applicable law and the Company's Articles of Incorporation, the Company hereby
indemnifies and saves harmless Consultant from and against any liability he may
suffer or incur as a result of, or incident to, any act or omission during the
course of, or incident to, his services to the Company, said indemnification to
include advancement of, and reimbursement for, any reasonable expenses incurred
by Consultant in defense of any claims that may be asserted in connection with,
or as a result of, his services to, or on behalf of, the Company.
Miscellaneous.
(a) This Agreement shall be construed and interpreted
in accordance with the laws of the State of Florida.
(b) In the event that a legal action is brought to
enforce the terms of this Agreement, the prevailing party shall be entitled to
recover his or its costs of court, including all attorneys' fees at all trial
and appellate levels.
(c) The fact that one of the parties may have drafted
or structured any provision of this Agreement or any document referenced herein
shall not be considered in construing the particular provision or document
either in favor of or against such party.
(d) The parties agree that this Agreement may be
modified only in writing, and any party's failure to enforce this Agreement in
the event of one or more events that violate this Agreement shall not constitute
a waiver of any right to enforce this Agreement against subsequent violations.
(f) This Agreement embodies the entire agreement and
understanding of the parties hereto relating to the subject matter contained
herein, and supersedes any and all prior and/or contemporaneous agreements and
understandings (other than the Separation and Severance Agreement), oral or
written, between said parties with respect thereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
PEDIATRIX MEDICAL GROUP, INC. CONSULTANT:
/s/ XXXXXX X. XXXXXXX /s/ XXXXX X. XXXXXX
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Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
Senior Vice President and
General Counsel
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