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Exhibit 10.34
AMENDMENT NO. 2 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 Xxxxx X. Xxxxx, M.D. M.B.A.(the "Executive"), amends the Employment
Agreement (the "Agreement") entered into on the 1st day of February, 1995, as
amended, 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. 2 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/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, M.D., M.B.A.
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EXHIBIT A
INCENTIVE PLAN
FOR XXXXX X. XXXXX, M.D., M.B.A.
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 that certain Employment Agreements
dated January 1, 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.
"EMPLOYMENT PERIOD" means the same as the period defined in the
Employment Agreement.
"EXECUTIVE" means Xxxxx X. Xxxxx, M.D., M.B.A.
"PLAN" means this Incentive Plan for Xxxxx X. Xxxxx, M.D., M.B.A. as
amended from time to time.
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"PRE-TAX CONSOLIDATED NET INCOME" means the Company's annual
consolidated net income before the cumulative effect of any change in an
accounting principle, extraordinary items and income taxes as reflected
in the Company's audited financial statements for the relevant fiscal
period. For purposes of this Plan, the Company's Pre-Tax Consolidated
Net Income for any complete fiscal year shall not be less than zero. The
Pre-Tax Consolidated Net Income of the Company hereunder shall be as
determined by the Company's independent auditors in accordance with
generally accepted accounting principles and auditing standards, both
applied on a consistent basis with prior periods, except that the amount
of Pre-Tax Consolidated Net Income for any fiscal year of the Company
consisting of less than twelve (12) full and consecutive calendar months
shall be annualized on the basis of a twelve (12) month year.
"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. The Executive shall be entitled to an
incentive bonus for each of the Company's fiscal years during the Employment
Period. The Bonus shall be equal to five (5%) of the remainder of (x) the
Company's Pre-Tax Consolidated Net Income for the relevant year, minus (y) the
highest Pre-Tax Consolidated Net Income since 1995.
4.2. COMMITTEE CERTIFICATION. The Executive shall not receive any
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. Any Bonuses granted by the Committee under the
Plan 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, but in no event later than the 91st day after the
last day of the Company's fiscal year for which the Bonus is due to the
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Executive. Any such payment 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 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 the Executive's employment with
the Company is terminated for any reason, other than Cause (as defined in
Section 4.1(b) of the Employment Agreement), the Executive shall be paid the
Bonus that would have been payable to the Executive for the fiscal year if the
Executive's employment had not been terminated, multiplied by the number of days
in the fiscal year prior to and including the date of termination and divided by
365. The prorated Bonus 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.
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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 this 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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