Exhibit 10.23


 


ONCURE HOLDINGS, INC.


 


NON-QUALIFIED STOCK OPTION AGREEMENT


 


THIS
NON-QUALIFIED STOCK OPTION AGREEMENT (the “Agreement”), is made and entered
into as of [Date] between ONCURE HOLDINGS, INC., a Delaware corporation
(the “Company”), and (“Optionee”).


 


THE
PARTIES AGREE AS FOLLOWS:


 


Article I.              Grant
Of Option; Effective Date; Vesting Base Date.


 


Section 1.01                                Grant.  The Company hereby grants to Optionee
pursuant to the Company’s Equity Incentive Plan (the “Plan”), a copy of which
is attached to this Agreement as Exhibit A, a non-qualified stock
option (the “NQO”) to purchase all or any part of an aggregate of
                              
shares (the “NQO Shares”) of the Company’s Common Stock, par value $0.001 per
share (“Common Stock”) on the terms and conditions set forth herein and in the
Plan, the terms and conditions of the Plan being hereby incorporated into this
Agreement by reference.  Defined terms
used herein, but whose definition is not set forth herein shall have the meaning
and definition applicable thereto as set forth in the Plan.


 


Section 1.02                                Effective Date.  The effective date of this NQO is [Date], the
date on which such NQO was granted by the Company (the “Effective Date”).


 


Section 1.03                                Exercise Price.  The exercise price for purchase of the shares
of Common Stock covered by this NQO shall be $1.50 per share.


 


Section 1.04                                Term.  This NQO shall expire on the date 10 years
after the Effective Date.


 


Section 1.05                                Adjustment of
NQO.  The Company shall adjust the
number and kind of shares and the exercise price thereof in certain
circumstances in accordance with the provisions of the Plan.


 


Article II.             Exercise
of Options.


 


Section 2.01                                Vesting; Time
of Exercise.  This NQO
shall be fully vested and exercisable.


 


Section 2.02                                Exercise After
Termination.  If Optionee
incurs a Termination from the Company, to the extent the NQO has not then
expired or been exercised, this NQO shall remain exercisable for the period
specified below following such Termination and, thereafter, if the NQO is not
exercised, it shall expire and terminate. 
A transfer of Optionee among the Company and its Affiliates, or a leave
of absence duly authorized by the Company, shall not be deemed a Termination.


 


(a)                                  Death or
Disability.  In the
event that Optionee’s Termination is by reason of death or Disability, the
Option shall be exercisable by 


 

















 


Optionee’s beneficiary or
estate for a period of 12 months following Optionee’s death or Disability.  If the Option is not exercised within 12
months following Optionee’s death or Disability, then such Option shall expire
and shall no longer be exercisable.


 


(b)                                 Cause.  In the event that Optionee’s Termination is
by the Company for Cause (as defined below) the Option will automatically
terminate and expire and shall no longer be exercisable, whether or not
previously vested.  For purposes of this
Agreement, “Cause” shall be defined in Optionee’s employment agreement, or, if
there is no such definition, shall mean: (i) a material failure of Optionee
to perform his duties and functions as an employee; (ii) Optionee’s
willful failure to perform his material assigned duties without an excuse that
is reasonably acceptable to Company; (iii) Optionee engages in an act (or
causes an act) that has a material adverse impact on the reputation, business,
business relationships or financial condition of Company; (iv) the
conviction of or plea of guilty or nolo contendere
by Optionee to a felony or any crime involving moral turpitude, fraud or
misrepresentation;  (v) misappropriation
or embezzlement by Optionee of funds or assets of Company.


 


(c)                                  Retirement.  In the event that Optionee’s Termination
occurs on or after Optionee’s Retirement, the Option shall be exercisable by
Optionee for a period of 24 months following Optionee’s Retirement.  For purposes of this Agreement, “Retirement”
shall mean that on the date of Optionee’s Termination, Optionee has attained
age 59-1⁄2 and has completed five or more consecutive years of service with the
Company or any Subsidiary (or their predecessors, as determined by the
Administrator).  If the Option is not
exercised within 24 months following Optionee’s Retirement, then such Option
shall expire and shall no longer be exercisable.


 


(d)                                 Other
Termination.  In the
event that Optionee’s Termination is for any reason other than death,
Disability, Cause or Retirement, the Option shall be exercisable by Optionee
for a period of 3 months following Optionee’s Termination.  If the Option is not exercised within 3
months following Optionee’s Termination, then the Company shall, in exchange
for the cancellation of such unexercised Options and to the extent permissible
under applicable law, issue to the Optionee a number of shares of Stock equal
to fifty percent (50%) of (i) the product of (1) the number of shares
of Common Stock exercisable under such unexercised Options multiplied by (2) the
difference between the fair market value of one share of Common Stock on the
date of issuance and the exercise price per share of Common Stock under the
Options, divided by (ii) the fair market value of one share of Common
Stock on the date of issuance.  For
purposes of the foregoing, the fair market value of one share of Common Stock
on the date of issuance shall be determined in good faith by the Board.  No Options shall be exercisable after such
payment is made.


 


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Section 2.03                                Manner of
Exercise.  Optionee
may exercise this NQO, or any portion of this NQO, by giving written notice in
such form and at such time as established by the Administrator, payment of the
exercise price and payment of any applicable withholding or employment
taxes.  The date the Company receives the
required written notice of an exercise hereunder accompanied by payment will be
considered as the date this NQO was exercised. 
Promptly after receipt of the applicable exercise price, the required
income and employment tax withholding, if any and any other documents required
to be executed by the Administrator, the Company shall, issue to the Optionee
or other person entitled to exercise the NQO, the requisite number of NQO
Shares acquired upon exercise of the Option, which such shares may be evidenced
in book form or by a certificate in the discretion of the Administrator.  The Optionee or transferee of the Optionee
shall not have any privileges as a stockholder with respect to any NQO Shares
covered by the NQO until the date of the valid exercise of all or a part of the
NQO.


 


Section 2.04                                Nonassignability
of NQO.  This NQO is not assignable or
transferable by Optionee except by will or by the laws of descent and
distribution; provided, however, Optionee may transfer this NQO to Immediate
Family in accordance with the terms of the Plan.  Except to the extent transferred to Immediate
Family, during the life of Optionee, the NQO is exercisable only by the
Optionee.  Any attempt to otherwise
assign, pledge, transfer, hypothecate or dispose of this NQO in a manner not
herein permitted, and any levy of execution, attachment, or similar process on
this NQO, shall be null and void.


 


Article III.                                          Restrictions on
NQO Shares.


 


Section 3.01                                Investor Rights
Agreement.  Optionee
hereby agrees that the NQO Shares shall be subject to such terms and conditions
as the Administrator shall determine in its sole discretion, including, without
limitation, restrictions on the transferability of the NQO Shares, the right of
the Company to repurchase NQO Shares, and a right of first refusal in favor of
the Company with respect to permitted transfers of NQO Shares.  Such terms and conditions may, in the
Administrator’s sole discretion, be contained in the Investor Rights Agreement
or in such other agreement as the Administrator shall determine and which the
Optionee hereby agrees to enter into at the request of the Company upon
exercise of the Option.


 


Section 3.02                                Legality of
Issuance.  The Company
shall not be obligated to sell or issue any NQO Shares pursuant to this
Agreement if such sale or issuance, in the opinion of the Company and the
Company’s counsel, might constitute a violation by the Company of any provision
of law, including without limitation the provisions of the Exchange Act of
1934, as amended (the “Exchange Act”) or the Securities Act of 1933, as amended
(the “Securities Act”).


 


Section 3.03                                Registration or
Qualification of Securities.  The Company may, but shall not be required
to, register or qualify the sale of any NQO Shares under the Securities Act, or
any other applicable law.  The Company
shall not be obligated to take any affirmative action in order to cause the
grant or exercise of this NQO or the issuance or sale of any NQO Shares
pursuant thereto to comply with any law.


 


Section 3.04                                Restriction on
Transfer.  Regardless
whether the sale of the NQO Shares has been registered under the Securities Act
or has been registered or qualified under the securities laws of any state, the
Company may impose restrictions upon the sale, pledge or other 


 


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transfer of NQO Shares (including the placement of
appropriate legends on stock certificates) if, in the judgment of the Company
and the Company’s counsel, such restrictions are necessary or desirable in
order to achieve compliance with the provisions of the Securities Act, the
Exchange Act, the securities laws of any state or any other law.


 


Section 3.05                                Stock
Certificate Restrictive Legends.  Stock certificates evidencing NQO Shares may
bear such restrictive legends as the Company and the Company’s counsel deem
necessary or advisable under applicable law or pursuant to this Agreement,
including, without limitation, the following legends:


 


THE
TRANSFER, SALE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES OF
STOCK REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE INVESTOR RIGHTS
AGREEMENT AMONG THE COMPANY AND ITS STOCKHOLDERS, A COPY OF WHICH IS ON FILE AT
THE OFFICE OF THE COMPANY.  THE COMPANY
WILL FURNISH A COPY OF THE INVESTOR RIGHTS AGREEMENT TO THE HOLDER OF THIS
CERTIFICATE UPON REQUEST AND WITHOUT CHARGE. 
THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS, HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT FOR RESALE OR DISTRIBUTION, AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS IN THE OPINION OF COUNSEL FOR THE COMPANY SUCH SALE OR TRANSFER
WILL NOT VIOLATE APPLICABLE SECURITIES LAWS.


 


Article IV.                                        Miscellaneous.


 


Section 4.01                                Taxes.  Optionee acknowledges and agrees that
Optionee will be responsible for any taxes arising from exercise of this Option
and that the Company may withhold the amount of such taxes or require the
remittance of such taxes to the Company.


 


Section 4.02                                Representations,
Warranties, Covenants and Acknowledgments of Optionee Upon Exercise of NQO.  Optionee hereby agrees that in the event that
the Company and the Company’s counsel deem it necessary or advisable in the
exercise of their discretion, the issuance of NQO Shares may be conditioned
upon certain representations, warranties and acknowledgments by the person
exercising the NQO (the “Purchaser”), including, without limitation, those set
forth in Sections 4.02 (a) through (h) hereof:


 


(a)                                  Investment.  Purchaser is acquiring the NQO Shares for
Purchaser’s own account and not for the account of any other person. Purchaser
is acquiring the NQO Shares for investment and not with a view to distribution
or resale thereof except in compliance with applicable laws regulating
securities.


 


(b)                                 Business
Experience.  Purchaser
is capable of evaluating the merits and risks of Purchaser’s investment in the
Company evidenced by purchase of the NQO Shares.


 


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(c)                                  Relation to
Company.  Purchaser is presently an
officer, director or employee of, or a consultant to, the Company and in such
capacity has become personally familiar with the business, affairs, financial
condition and results of operations of the Company.


 


(d)                                 Access to
Information.  Purchaser
has had the opportunity to ask questions of, and to receive answers from,
appropriate executive officers of the Company with respect to the terms and
conditions of the transaction contemplated hereby and with respect to the
business, affairs, financial condition and results of operations of the
Company.  Purchaser has had access to
such financial and other information as is necessary in order for Purchaser to
make a fully-informed decision as to investment in the Company by way of
purchase of the NQO Shares and has had the opportunity to obtain any additional
information necessary to verify any of such information to which Purchaser has
had access.


 


(e)                                  Speculative
Investment.  Purchaser’s
investment in the Company represented by the NQO Shares is highly speculative
in nature and is subject to a high degree of risk of loss in whole or in
part.  The amount of such investment is
within Purchaser’s risk capital means and is not so great in relation to
Purchaser’s total financial resources as would jeopardize the personal
financial needs of Purchaser or Purchaser’s family in the event such investment
were lost in whole or in part.


 


(f)                                    Registration.  Purchaser must bear the economic risk of
investment for an indefinite period of time because the sale to Purchaser of
the NQO Shares has not been registered under the Securities Act and the NQO
Shares cannot be transferred by Purchaser unless such transfer is registered
under the Securities Act or an exemption from such registration is
available.  The Company has made no
agreements, covenants or undertakings whatsoever to register the transfer of
any of the NQO Shares under the Securities Act. 
The Company has made no representations, warranties or covenants
whatsoever as to whether any exemption from the Securities Act, including
without limitation any exemption for limited sales in routine brokers’
transactions pursuant to Rule 144, will be available; if the exemption
under Rule 144 is available at all, it may not be available until at least
two years after payment of cash for the NQO Shares and not then unless: (i) a
public trading market then exists in the Company’s common stock; (ii) adequate
information as to the Company’s financial and other affairs and operations is
then available to the public; and (iii) all other terms and conditions of Rule 144
have been satisfied.


 


(g)                                 Public Trading.  None of the Company’s securities is presently
publicly traded, and the Company has made no representation, covenant or
agreement as to whether there will be a public market for any of its
securities.


 


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(h)                                 Tax Advice.  The Company has made no warranties or representations
to Purchaser with respect to the income tax consequences of the transactions
contemplated by the option agreement pursuant to which the NQO Shares will be
purchased, and Purchaser is in no manner relying on the Company or the Company’s
representatives for an assessment of such tax consequences.


 


Section 4.03                                Assignment;
Binding Effect.  Subject to
the limitations set forth in this Agreement, this Agreement shall be binding
upon and inure to the benefit of the executors, administrators, heirs, legal
representatives and successors of the parties hereto; provided, however, that
Optionee may not assign any of Optionee’s rights under this Agreement.


 


Section 4.04                                Damages.  Optionee shall be liable to the Company for
all costs and damages, including incidental and consequential damages,
resulting from a disposition of shares which is not in conformity with the
provisions of this Agreement.


 


Section 4.05                                Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.


 


Section 4.06                                Notices.  All notices and other communications under
this Agreement shall be in writing. 
Unless and until the Optionee is notified in writing to the contrary,
all notices, communications and documents shall be directed to the Company at
its corporate headquarters.  Unless and
until the Company is notified in writing to the contrary, all notices,
communications and documents intended for the Optionee and related to this
Agreement, if not delivered by hand, shall be mailed to Optionee’s last known
address as shown on the Company’s books. 
Notices and communications shall be mailed by first class mail, postage
prepaid; documents shall be mailed by registered mail, return receipt
requested, postage prepaid.  All mailings
and deliveries related to this Agreement shall be deemed received only when
actually received.


 


[Signature Page Follows]


 


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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.


 


	
   

  	
  ONCURE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Title:
  Chief Executive Officer

  



 


The
Optionee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.


 


	
   

  	
  Optionee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Dated:

  



 


[Signature Page to Option Agreement]


 


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