Exhibit 10.16


 


SECOND
AMENDMENT TO EMPLOYMENT AGREEMENT


 


This second amendment (the “Amendment”)  to the Employment
Agreement by and between Oncure Medical Corp. (the “Corporation”) and
David S. Chernow (the “Employee”),  dated
as of December 17, 2008, is hereby made and entered into effective as of December 17,
2008, by and between the Corporation and the Employee.


 


WHEREAS, the Corporation
and the Employee entered into the Employment Agreement dated as of May 17,
2007 (the “Agreement”);  and


 


WHEREAS, the Corporation
and the Employee desire to amend the Agreement to conform the Agreement to the
requirements of Section 409A of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations and Internal Revenue Service guidance
thereunder.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements of the parties set forth
in this Amendment, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:


 


1.             Section 11.11
of the Agreement is hereby amended in its entirety to read as follows:


 


11.11.             Compliance with Section 409A
of the Internal Revenue Code.


 


(a)  All payments
of “nonqualified deferred compensation” (within the meaning of Section 409A
of the Code (together with Department of Treasury regulations and other
official guidance issued thereunder, “Section 409A”)) are intended to comply with the
requirements of Section 409A, and shall be interpreted in accordance
therewith. No party individually or in combination with any other may accelerate
any such deferred payment, except in compliance with Section 409A, and no
amount shall be paid prior to the earliest date on which it is permitted to be
paid under Section 409A.


 


(b)  Unless
otherwise expressly provided, any payment of compensation by the Corporation to
the Employee, whether pursuant to this Agreement or otherwise, shall be made
within two and one-half months (21/2 months) after the end of the
later of the calendar year or the Corporation’s fiscal year in which the
Employee’s right to such payment vests (i.e., is not subject to a substantial
risk of forfeiture for purposes of Section 409A). Such amounts shall not
be aggregated with any other payments and shall not be subject to the
requirements of subsection (d) below applicable to “nonqualified deferred
compensation.”


 


(c)  Notwithstanding
anything in this Agreement to the contrary, to the extent that any payment or
benefit constitutes non-exempt “nonqualified deferred compensation” for
purposes of Section 409A, and such payment or benefit would otherwise be
payable or distributable hereunder by reason of the Employee’s termination of
employment, all references to the Employee’s termination of employment shall be
construed to mean a “separation from service,” as defined in Treasury
Regulation Section 1.409A-1(h) (a


 


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“Separation from Service”), and the Employee shall not be considered to have a termination of
employment unless such termination constitutes a Separation from Service with
respect to the Employee. If this Section 11.11(c) applies, such
payments or benefits that are subject to Section 409A shall be paid (or,
in the event of any installment payments, shall commence to be paid) on the
date that the Corporation determines within sixty (60) days following the date
of the Employee’s Separation from Service.


 


(d)  Notwithstanding
anything in Section 11.11(c) to the contrary, if the Employee is a “specified
employee” on the date of the Employee’s Separation from Service, any benefit or
payment that constitutes non-exempt “nonqualified deferred compensation”
(within the meaning of Section 409A) shall be delayed in order to avoid a
prohibited payment under Section 409A(a)(2)(B)(i) of the Code, and
any such delayed payment shall be paid to the Employee in a lump sum during the
ten (10) day period commencing on the earlier of (i) the expiration
of the six-month period measured from the date of the Employee’s Separation
from Service, or (ii) the Employee’s death. To the greatest extent
permitted under Section 409A, any separate payment or benefit under the
Agreement will not be deemed to constitute “nonqualified deferred compensation”
subject to Section 409A and the six-month delay requirement to the extent
provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or
any other applicable exception or provision of Section 409A.


 


(e)  Section 11.11(d) above
shall not apply to that portion of any amounts payable upon a Separation from
Service which shall qualify as “involuntary severance” under Section 409A
because such amount does not exceed the lesser of (1) two hundred percent
(200%) of the Employee’s annualized compensation from the Corporation for the
calendar year immediately preceding the calendar year during which the
Separation from Service occurs, or (2) two hundred percent (200%) of the
annual limitation amount under Section 401(a)(17) of the Code for the
calendar year during which the Separation from Service occurs.


 


(f)  With respect
to any continuation healthcare coverage provided under the Agreement, if during
the period of continuation coverage, any plan pursuant to which such benefits
are provided ceases to be exempt from the application of Section 409A
under Treasury Regulation Section 1.409A-1(a)(5), then an amount equal to
each such remaining premium shall thereafter be paid to the Employee as
currently taxable compensation in substantially equal monthly installments over
the remainder of the continuation coverage period.


 


(g)  With respect
to any reimbursements or in-kind benefits, such reimbursements or benefits
shall be provided in a manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(iv),
including the following: (i) in no event shall such benefits or
reimbursements be provided later than the last day of the Employee’s taxable
year following the taxable year in which the expense was incurred or obligation
arose, (ii) the amount of expenses eligible for reimbursement, or in-kind
benefits provided, during the Employee’s taxable year may not affect the
expenses eligible for reimbursement, or in-kind benefits provided, in any other
taxable year of the Employee, and (iii) the right to reimbursements or
in-kind benefits is not subject to liquidation or exchange for another benefit.


 


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(h)  For purposes
of this Agreement any installment payments made on separate dates shall be
treated as a series of separate and distinct payments for purposes of Section 409A.


 


(i)  If the parties
hereto determine that any payments or benefits payable under this Agreement
intended to comply with Section 409A do not so comply, the Employee and
the Corporation agree to amend this Agreement, or take such other actions as
the Employee and the Corporation deem necessary or appropriate, to comply with
the requirements of Section 409A, while preserving benefits that are, in
the aggregate, no less favorable than the benefits as provided to the Employee
under this Agreement. If any provision of the Agreement would cause such
payments or benefits to fail to so comply, such provision shall not be
effective and shall be null and void with respect to such payments or benefits,
and such provision shall otherwise remain in full force and effect.
Notwithstanding anything herein to the contrary, no amendment may be made to
this Agreement if it would cause the Agreement or any payment hereunder not to
be in compliance with Code Section 409A.


 


2.             The
Agreement, as amended by this Amendment, shall remain in full force and effect
in accordance with the terms and conditions thereof. This Amendment may be
executed simultaneously in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Amendment on the date first written above.


 


	
   

  	
   

  	
  Oncure Medical Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Russell D Phillips, Jr.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Russell D Phillips, Jr.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  EVP & General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ David S. Chernow

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name: David S. Chernow

  



 


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