Exhibit
10.18


 


Oncure Medical Corp.

188 Inverness Drive West

Suite 650

Englewood, CO 80112


 


February 19, 2010


 


Via Electronic Mail & U.S. First Class Mail


 


Mr. David S. Chernow


7100 E. Crestline Avenue


Greenwood Village, CO 80111


 


Dear David:


 


This letter confirms the agreement between Oncure
Medical Corp. (the “Company”) and you regarding the terms of your
separation from the Company effective as of February 26, 2010 (the “Separation
Date”).


 


1.             Resignation
of Title and Position. As of the
Separation Date, you hereby resign as President and Chief Executive Officer of
the Company and confirm your resignation of all other positions that you hold
as an employee or officer with the Company and any of its affiliates and all
positions that the you hold on the Board of Directors of OnCure Holdings, Inc.
(“Holdings”), and on the Boards of Directors of any of Holdings’
subsidiaries, and any and all committees thereof, and the Company confirms its
acceptance of such resignations. Your separation from the Company on the
Separation Date shall constitute a termination of your employment pursuant to Section 4.6
of the Employment Agreement by and between you and the Company dated May 17,
2007, as amended (the “Employment Agreement”).


 


2.             Severance
Pay and Benefits. As of the
Separation Date, you will be entitled to receive (a) all wages accrued
through that date, including all accrued, unused vacation in a lump sum, (b) $508,000
equal to the sum of one year of your current base salary, payable on the
Company’s normal payroll periods over a period of one year, (c) in lieu of
any amounts otherwise earned under the 2009 annual bonus plan, $100,000 payable
in a lump sum at the same time the 2009 annual bonus payments are made to the
executives of the Company, and (d) at the Company’s expense, continued
health insurance coverage pursuant to “COBRA” for a period of up to twelve (12)
months following the Separation Date or until the date Executive is no longer
eligible for “COBRA” continuation coverage, whichever is earlier, (the “Severance
Benefits”). In addition, you shall be permitted to keep possession of the
Company provided computers and related monitors currently at your residence and
your Company provided blackberry; provided,
however, that all such devices shall be delivered to the Company and
all confidential Company information and proprietary software shall be deleted
from such devices to the Company’s satisfaction, and any ongoing carrier
charges for blackberry service shall solely be your responsibility following
the Separation Date. All payments and benefits made pursuant to this


 

















 


Section 2 shall be net of applicable taxes and other authorized
withholding. All payments and benefits outlined in this Section 2 are in
satisfaction of the Company’s obligations under Colorado wage payment laws and
shall constitute full and complete satisfaction of any and all amounts properly
due and owing to you as a result of your employment, or termination thereof,
with the Company and any subsidiary or affiliate of the Company and pursuant to
the terms of the Employment Agreement. The payments made pursuant to
subsections (b) through (d) of this Section 2 are made in
consideration for your compliance with the Conditions for Receiving Severance
set forth in Section 5 of this agreement (including the Release) and with Section 8
of this agreement. You acknowledge that you are not entitled to a pro rata
Annual Bonus (as defined in the Employment Agreement) with respect to 2010.


 


3.             Transaction
Bonus. In the event the Company
consummates a merger or other business combination transaction with Alliance
HealthCare Services on or before June 30, 2010, and Genstar Capital
Partners IV, L.P. and/or its affiliates receive proceeds, net of any fees or
expenses, from such transaction in excess of 1.3 times their cumulative
investment in the Company, then the Company shall pay to you a one time
transaction bonus of $100,000, payable in a lump sum within 30 days of the
closing of such transaction (the “Transaction Bonus”). The value of any
publicly traded securities received as proceeds in the transaction shall be
valued based on the average closing price per share of such securities over the
thirty (30) days immediately preceding the closing date of the transaction and
any other non-cash proceeds shall be valued as determined by the Company’s
board of directors in good faith. All payments made pursuant to this Section 3
shall be net of applicable taxes and other authorized withholding.


 


4.             Stock
Options. All unexercised Options to
purchase shares of Holdings common stock held by you as of the date hereof (“Options”)
will expire immediately upon the Separation Date, whether or not vested as of
the Separation Date. You hereby covenant and agree that you will not exercise
any of the vested Options prior to the Separation Date.


 


5.             Conditions
for Receiving Severance and Transaction Bonus. Pursuant to the terms of the Employment Agreement, and as a condition
for eligibility to receive the Transaction Bonus and the Severance Benefits and
other benefits of Section 2, you must do the following:


 


a)             On or before
the Separation Date, except as provided in Section 2, return all Company
property in your possession, including, without limitation, (i) all
Company-issued computer equipment and related accessories, including all
storage devices; and (ii) all documents containing employee personal data
(including but not limited to wages, salaries, social security numbers or
medical information) and customer documents, whether in electronic or hard copy
form;


 


b)            Cooperate with the
Company in a professional manner to transition duties and responsibilities;


 


c)             Sign and return
this agreement and the attached Release of Claims (the “Release”) no
later than March 11, 2010 in
the envelope provided and not revoke the Release within the seven day
revocation period contained therein; and


 


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d)         Comply with the requirements
of Section 9.


 


6.             Maintaining
Confidential information. You agree that
you will not disclose any privileged or confidential information that you
acquired while employed with the Company to any other person, or use such
information in any manner that is detrimental to the Company’s or its customer’s
interests. Nothing herein is intended to prohibit you from responding to a
lawfully issued subpoena or other legal process.


 


7.             Non-Disparagement/References. You agree not
to disparage or otherwise communicate negative statements or opinions about the
Company, its customers, owners, employees or business. The Company agrees to
instruct its officers and directors to not disparage or otherwise communicate
negative statements or opinions about you. If contacted by prospective
employers, the Company will provide, consistent with its standard policy, your
job title and dates of employment.


 


8.             Cooperation. In addition to
your duties under Section 5 b), you agree that following your Separation
Date you will provide reasonable cooperation to the Company, its subsidiaries,
officers, employees, directors and their successors and assigns at mutually
agreeable times and places in response to requests made by the Company or its
attorneys in matters relating to internal investigations, external
investigations and/or judicial or administrative proceedings arising out of or
relating in any way to any facts known by you, including but not limited to
reasonable cooperation with the Company’s independent accounting firm or firms
as well as reasonable participation in conferences and meetings, assisting
counsel, being available for interviews and depositions, providing documents or
information, aiding in analysis of documents, testifying or complying with any
other reasonable requests by the Company. The Company shall reimburse you for
all pre-approved expenses reasonably incurred by you in compliance with this
Section.


 


9.             Restrictive
Covenants. The restrictive covenants
contained in Article IX of the Employment Agreement (the “Restrictive
Covenants”) shall remain in full force and effect, and are incorporated by
reference herein as if fully set forth herein.


 


10.          Investor Rights Agreement. You
acknowledge and agree that that certain Investor Rights Agreement entered into
as of August 18, 2006 by and among you, Holdings and certain of its
stockholders which are parties thereto (the “Investor Rights Agreement”),
as amended, shall remain in full force and effect, and is incorporated by
reference herein as if fully set forth herein.


 


11.          Breach of Covenants. In the event
that you breach or threaten to breach the covenants set forth in Sections
6,7,8, 9 or 10, you acknowledge that the Company, will have no adequate remedy
at law and will be irreparably harmed and, therefore, you agree that the
Company shall be entitled to injunctive relief to prevent any breach or
threatened breach and that the Company shall be entitled to specific
performance of the terms of Sections 5,6,7,8 or 9 in addition to any other
legal or equitable remedy it may have in each case without the posting of any
bond or proving actual damages.


 


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12.          Enforcement; Arbitration. Except for an
action seeking injunctive relief with Section 8 or the Release, all
disputes, controversies, or claims based upon, relating to, or arising from
your employment by the Company or the terms, interpretation, performance,
breach, or arbitrability of this agreement or the Release (other than workers’
compensation claims) shall be settled through final and binding arbitration.
Unless you and the Company mutually agree otherwise, the arbitration shall be
conducted by a single neutral arbitrator before the Judicial Arbitration and
Mediation Service (“JAMS”), in accordance with its applicable rules. The
arbitration shall be commenced by filing a demand for arbitration with JAMS
within 14 (fourteen) days after the filing party has given notice of such
breach to the other party. Judgment on the award the arbitrator renders may be
entered in any court having jurisdiction over the parties. Arbitration may be
compelled and enforced in accordance with the Federal Arbitration Act, 9 U.S.C.
§1, et seq. Arbitration shall be conducted in Denver, Colorado.


 


13.          Choice of Law. This agreement
shall in all respects be governed and construed in accordance with the laws of
the State of Colorado, including all matters of construction, validity and
performance, without regard to conflicts of law principles.


 


14.          Severability. The provisions
of this agreement are severable. If any provision is held to be invalid or
unenforceable, it shall not affect the validity or enforceability of any other
provision. If for any reason any portion of this agreement shall be held by a
court of competent jurisdiction to be invalid or unenforceable, the parties
agree that the remaining portions of this agreement shall remain in full force
and effect and that such court, upon the request of the Company, may construe
and/or modify such invalid or unenforceable portion in a valid and enforceable
manner that most closely reflects the effect and intent of the original
language.


 


15.          Voluntary and Knowing Agreement. You represent
that you have thoroughly read and considered all aspects of this agreement,
that you understand all of its provisions and that you are voluntarily entering
into this agreement.


 


16.          Entire Agreement; Amendment. This agreement
and the Release set forth the entire agreement between you and the Company and
supersede any and all prior and contemporaneous oral or written agreements or
understandings between you and the Company concerning the subject matter. This
agreement may not be altered, amended or modified, except by a further written
document signed by you and the Company.


 


17.          Execution in Counterparts. This agreement
may be executed in counterparts with the same force and effectiveness as though
executed in a single document.


 


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If you agree to the above
terms, please date and sign the enclosed copy of this letter in the places
indicated below and return that copy along with a signed and dated Release no
later than March 11, 2010.


 


	
   

  	
  Respectfully,

  
	
   

  	
   

  
	
   

  	
  Oncure Medical Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. Duane Choate

  
	
   

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
      Its: President & CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and agreed.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ David S. Chernow

  	
   

  	
   

  	
   

  
	
  David S. Chernow

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  2/19/2010

  	
   

  	
   

  	
   

  
					



 


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WAIVER
AND RELEASE OF CLAIMS


 


This Waiver and Release of
Claims (the “Release”) is given as required under the terms of that
certain Employment Agreement by and between David S. Chernow (the “Executive”)
and Oncure Medical Corp. (the “Company”) dated May 17, 2007, as
amended (the “Employment Agreement”) and the letter agreement between
the Company and Executive dated February 19, 2010 (the “Letter
Agreement”).


 


(1)           In consideration of the separation pay and benefits to be
provided to Executive under-the terms of the Employment Agreement and Letter
Agreement, Executive, on behalf of himself and his heirs, executors,
administrators, attorneys and assigns; hereby waives, releases and forever
discharges Oncure Medical Corp. (the “Employer”) and the Employer’s
parents, subsidiaries, whether direct or indirect, and their joint ventures and
joint venturers at the time of Executive’s termination (“Affiliates),(including
the Employer’s and Affiliates’ respective directors, officers, employees,
shareholders, partners and agents, past, present, and future), and each of the
Employer’s and Affiliates’ respective successors and assigns (hereinafter
collectively referred to as “Releasees”), from any and all known or
unknown actions, causes of action, claims or liabilities of any kind which have
or could be asserted against the Releasees arising out of or related to
Executive’s employment with and/or separation from employment with the Employer
and/or any of the Releasees and/or arising out of or relating to any other
occurrence up to and including the date of this Waiver and Release Agreement,
including but not limited to:


 


(a)           claims, actions, causes of action or liabilities arising
under Title VII of the Civil Rights Act, as amended, the Age Discrimination in
Employment Act, as amended (the “ADEA”), the Employee Retirement Income
Security Act, as amended, the Rehabilitation Act, as amended, the Americans
with Disabilities Act, as amended, the Family and Medical Leave Act, as
amended, and/or any other federal, state, municipal, or local employment
discrimination statutes or ordinances (including, but not limited to, claims
based on age, sex, attainment of benefit plan rights, race, religion, national
origin, marital status, sexual orientation, ancestry, harassment, parental
status, handicap, disability, retaliation, and veteran status) and/or


 


(b)           claims, actions, causes of action or liabilities arising
under any other federal, state, municipal, or local statute, law, ordinance or
regulation; and/or


 


(c)           any other claim whatsoever including, but not limited to,
claims for severance pay, claims based upon breach of contract, wrongful
termination, defamation, intentional infliction of emotional distress, tort,
personal injury, invasion of privacy, violation of public policy, negligence
and/or any other common law, statutory or other claim whatsoever arising out of
or relating to Executive’s employment with and/or separation from employment
with the Employer and/or any of the other Releasees,


 


but excluding (i) any
claims which Executive may make under state worker’s compensation or
unemployment laws, (ii) any claims for indemnity as an officer of Employer
or any Releasee that Executive may have by law, under the bylaws or articles of
incorporation of Employer or any Releasee, or pursuant to any directors and
officers liability insurance, (iii) any claim to enforce the terms of the
Employment Agreement or


 

















 


any consideration to be
received by Executive thereunder and/or (iv) claims which by law Executive
cannot waive (collectively subsections (i), (ii), (iii) and (iv) are
the “Excluded Claims”).


 


(2)           Executive also agrees never to sue any of the Releasees or
become party to a lawsuit on the basis of any claim of any type whatsoever
arising out of or related to Executive’s employment with and/or separation from
employment with the Employer and/or any of the other Releasees, other than a
suit to challenge this Waiver and Release agreement under ADEA or any suit for
the Excluded Claims.


 


(3)           Executive further acknowledges and agrees that if
Executive breaches the provisions of paragraph (2) above, then (a) the
Employer shall be entitled to apply for and receive an injunction to restrain
any violation of paragraph (2) above, (b) the Employer shall not be
obligated to continue  payment of the
separation  pay and availability of
separation benefits, if  any, to
Executive, (c) Executive shall be obligated to pay to the Employer its
costs and expenses in enforcing this Waiver and Release Agreement and defending
against such lawsuit (including court costs, expenses and reasonable legal
fees) and (d) as an alternative to (c), at the Employer’s option,
Executive shall be obligated upon demand to repay to the Employer all but $100
of the separation benefits, if any, paid or made available to Executive
pursuant to the Employment Agreement or Letter Agreement, and the foregoing
covenants in this paragraph (3) shall not affect the validity of this
Waiver and Release Agreement and shall not be deemed to be a penalty or a
forfeiture.


 


(4)           Executive further waives his right to any monetary
recovery should any federal, state or local administrative agency pursue any
claims on Executive’s behalf arising out of or related to Executive’s
employment with and/or separation from employment with the Employer and/or any
of the other Releasees.


 


(5)           Executive further waives, releases, and discharges
Releasees from any reinstatement rights which Executive has or could have and
Executive acknowledges that he has not suffered any on-the-job injury for which
he has not already filed a claim.


 


(6)           Executive further agrees that if he breaches the covenants
set forth in Article IV of the Employment Agreement (the “Covenants”),
then (a) the Employer shall be entitled to apply for and receive an injunction
to restrain any such breach, (b) the Employer shall not be obligated to
continue payment of the separation pay and availability of separation benefits,
if any and (c) Executive shall be obligated to pay to the Employer its
costs and expenses in enforcing the Covenants (including court costs, expenses
and reasonable legal fees).


 


(7)           Executive acknowledges that he has been given at least
twenty-one (21) days to consider this Waiver and Release Agreement thoroughly
and was encouraged to consult with an attorney, if desired, before signing
below.


 


(8)           Executive understands that Executive may revoke this
Waiver and Release Agreement within seven (7) days after its signing and
that any revocation must be made in writing and submitted within such seven day
period to the Employer. Executive further


 


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understands that if he revokes this Waiver and
Release Agreement, he shall not receive the separation pay nor, if applicable,
any separation benefits.


 


(9)           Executive also understands that the separation pay and, if
applicable, separation benefits which Executive will receive in exchange for
signing and not later revoking this Waiver and Release Agreement are in
addition to anything of value to which Executive is already entitled.


 


(10)         EXECUTIVE FURTHER UNDERSTANDS THAT THIS WAIVER AND RELEASE
AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO DATE.


 


(11)         Executive acknowledges and agrees that if any provision of
this Waiver and Release Agreement is found, held, or deemed by a court of
competent jurisdiction to be void, unlawful or unenforceable under any
applicable statute or controlling law, the remainder of the Waiver and Release
Agreement shall continue in full force and effect.


 


(12)         This Waiver and Release Agreement is deemed made and entered
into in the State of Colorado without giving effect to its choice of laws
provisions, and in all respects shall be interpreted, enforced and governed
under applicable federal law and in the event reference shall be made to state
law, the internal laws of the State of Colorado. Any dispute under this Waiver
and Release Agreement shall be adjudicated by a court of competent jurisdiction
in the State of Colorado.


 


(13)         Executive further acknowledges and agrees that he has
carefully read and fully understands all of the provisions of this Waiver and
Release Agreement and that he voluntarily enters into this Waiver and Release
Agreement by singing below.


 


 


	
   

  	
   

  
	
   

  	
  David S. Chernow

  
	
   

  	
   

  
	
   

  	
  /s/ David S. Chernow

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
   

  	
  March 1, 2010

  
	
   

  	
  (Date)

  



 


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