Exhibit
10.8


 


AGREEMENT NOT TO COMPETE


 


THIS AGREEMENT NOT TO COMPETE (this “Agreement”)
is made and entered into as of August 18, 2006, by and between OnCure
Holdings, Inc., a Delaware corporation (“Parent”), and Shyam
Paryani (the “Seller”).


 


RECITALS:


 


A.            Parent, OnCure Acquisition Sub, Inc.,
a Delaware corporation and wholly owned subsidiary of Parent (the “Merger
Sub”), Seller, OnCure Medical Corp., a Delaware corporation (together with
its subsidiaries and affiliates, the “Company”), and certain other
parties have entered into that certain Agreement and Plan of Merger (the “Merger
Agreement”), dated as of July 5, 2006, pursuant to which Merger Sub
will merge with and into the Company such that Company shall become a wholly
owned subsidiary of Parent (the “Merger”).


 


B.            Seller is a stockholder of the
Company and will receive personally material financial benefits upon the
completion of the transactions contemplated by the Merger Agreement.


 


C.            This Agreement is a material
inducement to Parent’s entering into the Merger Agreement, and Parent has
relied upon this Agreement in consummating the Merger and the other
transactions contemplated under the Merger Agreement.


 


D.            Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the same meanings as set
forth in the Merger Agreement.


 


AGREEMENT:


 


NOW, THEREFORE, in consideration of the premises, the
mutual promises hereinafter set forth, and other good and valuable
consideration received, the parties hereto agree as follows:


 


1.             Agreement
Not to Compete.


 


Except
as may otherwise be provided in this Section 1, during the Noncompetition
Period (as hereinafter defined), Seller shall not in any manner, directly or
indirectly, including through entities controlled by Seller, within the Territory
(as hereinafter defined), (a) engage or participate in the business of
operating and managing outpatient facilities that provide radiation therapy,
medical oncology and related oncology services and providing physician practice
management services for medical and radiation oncologists (collectively, the “Business”)
or perform services for third parties that are competitive with the Business (“Competitive
Services”), or (b) own or operate any business that engages or
participates in the Business or that performs Competitive Services.  Seller shall be deemed to be engaged in the
Business or performing Competitive Services if Seller shall engage in such
business or perform such services directly or indirectly, whether for Seller’s
own account or for that of another person, firm or corporation, or whether as
stockholder, principal, partner, member, agent, investor, proprietor, director,
officer, employee or consultant or in any other capacity, except as a
consultant or 


 

















 


employee
to Parent or any parent, subsidiary or other Affiliate of Parent (including,
without limitation, the Company).  The
covenants contained in this Section 1 shall not apply to Seller’s
provision of professional medical services or to his ownership, management,
administration or operation of those professional medical practices, cancer
centers, and affiliates listed on Schedule A attached hereto, including
all successor entities thereto.  For
purposes of this Agreement, the term “Territory” shall mean the United
States, provided that by resolution adopted by the Board of Directors, the
Company may by written consent (not to be unreasonably withheld) exclude from
the Territory any state or states other than California, Florida, Georgia and
Arizona.  For the purposes of this
Agreement, the term “Noncompetition Period” shall mean the period
beginning at the Effective Time and ending upon the later to occur of (x) the
second anniversary of the Effective Time and (y) two years after the
termination of Seller’s service on the Board of Directors and Medical Advisory
Board of the Company.  Notwithstanding
the foregoing provisions of this Section 1, the prohibitions of this Section 1
shall not be deemed to prevent Seller from owning 2% or less of any class of
equity securities of an entity that has a class of equity securities registered
under Section 12 of the Exchange Act.


 


2.             Confidential
Information; Non-Solicitation.


 


(a)           Seller
acknowledges that Seller has occupied a position of trust and confidence with
the Company prior to the date hereof and has become familiar with the
following, any and all of which constitute confidential information relating to
the Company (collectively, the “Confidential Information”): (i) any
and all trade secrets concerning the business and affairs of the Company, specifications,
data, know-how, formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas, past, current and
planned research and development, physician and patient lists, physician and
patient information databases, mailing lists, current and anticipated physician
and patient requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer
software and data-base technologies, systems, structures and architectures and
related processes, formulae, compositions, improvements, devises, know-how,
inventions, discoveries, concepts, ideas, designs, methods and information of
the Company and any other information, however documented, of the Company or
related to the Company that is a trade secret; (ii) any and all
information concerning the business and affairs of the Company and the
operation of the Business (which includes historical financial statements,
financial projections and budgets, historical and projected sales and/or
revenues, capital spending budgets and plans, the names and backgrounds of key
personnel, the names and backgrounds of acquisition targets, personnel training
and techniques and materials), however documented; and (iii) any and all
notes, analyses, compilations, studies, summaries, and other material prepared
by or for the Company containing or based, in whole or in part, on any
information included in the foregoing. For purposes of this Agreement, however,
Confidential Information shall not include any of the foregoing that is or
becomes generally known to and available for use by the public other than as a
result of Seller’s fault or the fault of any other Person bound by a duty of
confidentiality to Parent.


 


(b)           Seller
acknowledges and agrees that all Confidential Information known or obtained by
Seller, as of the date hereof, is the sole property of the Company.  Therefore, Seller agrees that Seller will
not, at any time, disclose to any unauthorized Persons or use for Seller’s own
account or the account of any affiliate of the Seller or for the benefit of any
third 


 


2

















 


party
any Confidential Information, whether Seller has such information in Seller’s
memory or embodied in writing or other physical form, without Parent’s prior
written consent (which it may grant or withhold in its sole discretion). If
requested by Parent, Seller agrees to deliver to Parent at the time of
execution of this Agreement, and at any other time Parent may request, all
documents, memoranda, notes, plans, records, reports and other documentation,
models, components, devices or computer software, whether embodied in physical,
electronic or other form (and all copies of all of the foregoing), relating to
the businesses, operations or affairs of the Company or the operation of the
Business and any other Confidential Information that Seller may then possess or
have under Seller’s control; provided however, that
Seller’s covenants contained in this Section 2 shall not apply to any
disclosures or uses by Seller of Confidential Information (i) in the
ordinary course of Seller’s examination and treatment of patients as a part of
his professional medical practice or (ii) in connection with Seller’s ownership,
management, administration or operation of those professional medical
practices, cancer centers and affiliates listed in Schedule A attached hereto,
including all successor entities thereto.


 


(c)           In
the event that Seller is required (by oral questions, interrogatories, requests
for information or documents, subpoena, civil investigative demand or similar
process) to disclose any Confidential Information, Seller will promptly notify
Parent of such requirement so that Parent may seek an appropriate protective
order or waive compliance with the provisions of this Agreement, and/or take
any other mutually agreed action.  If, in
the absence of a protective order or the receipt of a waiver hereunder, Seller
is, in the opinion of Seller’s counsel, legally compelled to disclose
information or else stand liable for contempt or suffer other censure or
significant penalty, Seller may disclose that portion of the requested
information which Seller’s counsel advises Seller that Seller is compelled to
disclose.  In any event, Seller will
furnish only that portion of the information which is legally required and will
exercise Seller’s best efforts to obtain reliable assurance that confidential
treatment will be accorded the information. 
In addition, Seller will not oppose action by Parent to obtain an
appropriate protective order or other reliable assurance that such confidential
treatment will be so accorded.


 


(d)           During
the Noncompetition Period, Seller agrees not to, directly or indirectly,
solicit the employment or hire any employee of Parent or any parent, subsidiary
or affiliate of Parent (including, without limitation, the Company), it being
understood that the provisions of this Section 2(d) shall not
prohibit Seller from conducting general employment searches not targeting
employees of Parent or any parent, subsidiary or affiliate of Parent
(including, without limitation, the Company).


 


3.             Remedies.


 


(a)                         The necessity of protection against the
competition of Seller and the nature and scope of such protection has been
carefully considered and agreed upon by the parties hereto.  Seller acknowledges that the nature of the
Business is highly competitive, that one of the most valuable assets of the
Company is its goodwill in the marketplace and among its customers, which
Seller helped to develop and maintain in the course of Seller’s service to the
Company, and that Parent, in consummating the Merger and entering into the
transactions contemplated by the Merger Agreement, has relied on the fact that
it will acquire the goodwill of the Company and therefore on Seller’s
willingness to restrict Seller’s ability to compete with Parent or any current
or future affiliate of Parent in the conduct of the Business.  Seller and Parent hereby 


 


3

















 


agree and acknowledge that the duration, scope and
geographic area applicable to the restrictions set forth in this Agreement are
fair, reasonable and necessary.


 


(b)                         Seller acknowledges that the consideration
provided for in Section 5 hereof is sufficient and adequate to compensate
Seller for agreeing to the restrictions contained in this Agreement and that
such restrictions will not cause Seller undue hardship.  If, however, any court or arbitrator of
competent jurisdiction determines that the foregoing restrictions are
unreasonable and for that reason unenforceable, such restrictions shall be
modified, rewritten or interpreted to include as much of their nature and scope
as will render them enforceable.  Seller
and Parent agree that a monetary remedy for a breach of this Agreement will be
inadequate and will be impracticable and extremely difficult to prove, and
further agree that such a breach would cause Parent irreparable harm, and that
Parent, in addition to any and all other remedies available to it at law or in
equity, shall be entitled to temporary and permanent injunctive relief without
the necessity of proving actual damages. 
Seller agrees that Parent shall be entitled to such injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bond or other undertaking in
connection therewith.  Any such
requirement of bond or undertaking is hereby waived by Seller, and Seller
acknowledges that in the absence of such a waiver, a bond or undertaking might
be required by the court.


 


4.             Seller
Representation.


 


The
Seller hereby represents and warrants to the Parent that (a) the
execution, delivery and performance of this Agreement by the Seller do not and
will not conflict with, breach, violate or cause a default under any agreement,
contract or instrument to which the Seller is a party or any judgment, order or
decree to which the Seller is subject, (b) the Seller has full authority
to execute, deliver and be bound by the terms of this Agreement, and (c) upon
the execution and delivery of this Agreement by the Company and the Seller,
this Agreement will be a valid and binding obligation of the Seller,
enforceable in accordance with its terms.


 


5.             Consideration.


 


Seller
hereby acknowledges that as consideration for Seller’s covenants set forth in Section 1
and Section 2 of this Agreement, Parent has entered into the Merger
Agreement and would not have done so but for the agreement of Seller to enter
into this Agreement.


 


6.             Notices.


 


All
notices, consents, waivers and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt) provided  that a copy is
mailed by a nationally recognized overnight delivery service (e.g., Federal Express) or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service, in
each case to the appropriate addresses and facsimile numbers set forth below
(or to such other addresses and facsimile numbers as a party may designate by
notice to the other parties):


 


4

















 


If to Parent:


 


OnCure
Holdings, Inc.


c/o
Genstar Capital, L.P.


Four
Embarcadero Center, Suite 1900


San
Francisco, California 94111-4191


Attention:                Robert J. Weltman


Facsimile:               (415) 834-2383


 


With
a copy to:


 


Latham &
Watkins LLP


505
Montgomery Street


San
Francisco, California  94111-2562


Attention:                Scott R. Haber and
William C. Davisson


Facsimile:               (415) 395-8095


 


If
to Seller, to the address set forth below Seller’s name on the signature page to
this Agreement.


 


7.             Counterparts.


 


This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


8.             Headings.


 


The
headings herein are for convenience only, and shall not be deemed to limit or
affect the interpretation or effect any of the provisions hereof.


 


9.             Entire
Understanding.


 


This
Agreement and the other agreements and instruments incorporated herein
constitute the entire agreement and understanding between the parties, and
supersede all prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof.


 


10.           Amendments;
Termination.


 


This
Agreement may not be modified or changed except by written instrument signed by
each of the parties hereto.


 


11.           Governing
Law; Dispute Resolution; Waiver of Jury Trial; Service of Process; Consent to
Jurisdiction.


 


(a)                         The execution, performance and
interpretation of this Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Delaware,
without regard to that State’s choice of law rules.


 


5

















 


(b)                         Any claim or dispute arising out of or
related to this Agreement, the interpretation, making performance, breach or
termination thereof, shall be finally and exclusively settled by binding
arbitration to be held in the State of Delaware, County of New Castle.  The arbitration shall be made in accordance
with the then current Commercial Arbitration Rules of the American
Arbitration Association and such arbitration shall be conducted by an
arbitrator chosen by mutual agreement of Parent and Seller; failing such
agreement, the arbitration shall be conducted, by three independent
arbitrators, one chosen by Parent, one chosen by the Seller, and such two
arbitrators shall mutually select a third arbitrator, with any decision of two
such arbitrators shall be binding.  The
arbitrator(s) shall have the authority to grant any equitable and legal
remedies that would be available in any judicial proceeding instituted in the
State of Delaware, County of New Castle to resolve the dispute.  Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.  The parties expressly waive all rights
whatsoever to file an appeal against or otherwise to challenge any award by the
arbitrator(s) hereunder, provided  that the foregoing shall
not limit the rights of either party to bring a proceeding in any applicable
jurisdiction to conform, enforce or enter judgment upon such award (and the
rights of the other party, if such proceeding is brought, to contest such
confirmation, enforcement or entry of judgment).


 


(c)                         EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) SUCH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS,
(III) SUCH PARTY MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) SUCH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(d).


 


12.           Construction.


 


Whenever
in this Agreement the context so requires, references to the masculine shall be
deemed to include feminine and the neuter, references to the neuter shall be
deemed to include the masculine and feminine, and references to the plural
shall be deemed to include the singular and the singular to include the plural.


 


13.           Cooperation.


 


Each
party hereto shall cooperate with the other party and shall take such further
action and shall execute and deliver such further documents as may be necessary
or desirable in order to carry out the provisions and purposes of this
Agreement.


 


6

















 


14.           Waiver.


 


Seller
or Parent may, by written notice to the other: 
(a) waive any inaccuracies in the representations or warranties of
the other party contained in this Agreement or in any document delivered
pursuant to this Agreement; (b) waive compliance with any of the covenants
of the other party contained in this Agreement; or (c) waive or modify
performance of any of the obligations of the other party.  No action taken pursuant to this Agreement
shall be deemed to constitute a waiver by the party taking such action, possessing
such knowledge or performing such investigation of compliance with the
representations, warranties, covenants and agreements contained herein.  The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be constituted as a waiver
of any subsequent breach.  The failure of
any party to insist, in any one or more instances, upon performance of any of
the terms, covenants or conditions of this Agreement shall not be construed as
a waiver or relinquishment of any rights granted hereunder or any such term, covenant
or condition.


 


15.           Full Understanding; Negotiation of Agreement.


 


(a)           Seller represents that Seller has carefully read and fully understands
all of the provisions of this Agreement, that Seller is competent to execute
this Agreement, that Seller’s agreement to execute and deliver this Agreement
has not been obtained by any duress and that Seller freely and voluntarily
enters into it, and that Seller has read this Agreement in its entirety and
fully understands the meaning, intent and consequences of this Agreement.


 


(b)           Each of the parties hereto acknowledges that it has been represented by
independent counsel of its choice, or has had the opportunity to be represented
by independent counsel of its own choosing, and that to the extent, if any,
that it desired, each party hereto availed itself of this right and opportunity
throughout all negotiations that have preceded the execution of this Agreement,
and that it has executed the same with the consent and upon the advice of said
independent counsel.  Each party hereto
and its counsel cooperated in the drafting and preparation of this Agreement
and the documents referred to herein, and any and all drafts relating thereto
shall be deemed the work product of the parties and may not be construed
against any party by reason of its preparation. 
Accordingly, any rule of law, or any legal decision that would
require interpretation of any ambiguities in this Agreement against the party
that drafted it, is of no application and is hereby expressly waived.  The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the intentions of the parties and
this Agreement.


 


16.           Parties
in Interest; Assignment.


 


This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective permitted successors, assigns, heirs and/or personal
representatives, except that neither this Agreement nor any interest herein
shall be assigned or assignable by operation of law or otherwise by Seller
without the prior written consent of Parent. 
Nothing in this Agreement, expressed or implied, is intended to confer
on any person other than the parties and their 


 


7

















 


respective
successors and permitted assigns any rights or remedies under or by reason of
this Agreement.


 


17.           Severability.


 


In
the event that, notwithstanding the express, carefully considered, agreement of
Parent and Seller set forth herein, any provision of this Agreement shall be
deemed invalid, unenforceable or illegal, or if the period during which this
Agreement is to remain effective is found to exceed the legally permissible
period, then notwithstanding such invalidity, unenforceability or illegality
the remainder of this Agreement shall continue in full force and effect during
the maximum period legally permissible (subject to any reformation of terms as
provided for in Section 3).


 


18.           Attorneys’
Fees.


 


If
any party to this Agreement brings an action to enforce its rights under this
Agreement in accordance with the provisions hereof (including, without
limitation, rights under Section 11 hereof), the prevailing party shall be
entitled to recover its actual out-of-pocket costs and expenses, including
without limitation attorneys’ fees and court costs reasonably incurred in
connection with such action, including any appeal of such action.


 


(Signature Page Follows)


 


8

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement Not to Compete
as of the date first written above.


 


 


	
   

  	
  PARENT:

  
	
   

  	
   

  
	
   

  	
  ONCURE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Weltman

  
	
   

  	
  Name:

  	
  Robert
  J. Weltman

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  /s/
  Shyam Paryani

  
	
   

  	
  Name:

  	
  Shyam
  Paryani

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


[Signature
Page to Agreement Not to Compete — Shyam Paryani]


 

















 


SCHEDULE A


PROFESSIONAL MEDICAL PRACTICES AND AFFILIATES


 


1.                                       Integrated
Community Oncology Network, LLC (“ICON”), a professional medical practice,
including but not limited to (i) its medical oncology division, a/k/a
Florida Oncology Associates (“FOA”) and (ii) its radiation oncology
division, a/k/a Florida Radiation Oncology Group (“FROG”) and Georgia Radiation
Oncology Group (“GROG”), at the practice locations listed below, or such
substituted or additional practice locations as may be established in the
future:


 


	
  Baptist
  Medical Center

  	
   

  	
  Orange
  Park Cancer Center

  
	
  Edna
  Williams Cancer Treatment Center

  	
   

  	
  2161
  Kingsley Avenue

  
	
  1235
  San Marco Boulevard

  	
   

  	
  Orange
  Park, Florida 32073

  
	
  Jacksonville,
  Florida 32207

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Baptist
  Medical Center South

  	
   

  	
  Flagler
  Cancer Center

  
	
  14546
  St. Augustine Road

  	
   

  	
  300
  Health Park Boulevard

  
	
  Jacksonville,
  Florida 32258

  	
   

  	
  St.
  Augustine, Florida 32086

  
	
   

  	
   

  	
   

  
	
  Florida
  Cancer Center

  	
   

  	
  Cancer
  Center of Putnam

  
	
  3599
  University Boulevard South, Suite 1500

  	
   

  	
  600
  Zeagler Drive

  
	
  Jacksonville,
  Florida 32216

  	
   

  	
  Palatka,
  Florida 32177

  
	
   

  	
   

  	
   

  
	
  Southside
  Cancer Center

  	
   

  	
  Florida
  Cancer Center — Beaches

  
	
  5742
  Booth Road

  	
   

  	
  1375
  Roberts Drive, Suite 100

  
	
  Jacksonville,
  Florida 32207

  	
   

  	
  Jacksonville
  Beach, Florida 32250

  
	
   

  	
   

  	
   

  
	
  Southeast
  Georgia Regional Cancer Center

  	
   

  	
   

  
	
  2600
  Wildwood Drive

  	
   

  	
   

  
	
  Brunswick,
  Georgia 31520

  	
   

  	
   

  



 


 


2.                                       Florida
Radiation Oncology Group, a Florida general partnership, and the radiation
oncology division of ICON


 


3.                                       Georgia
Radiation Oncology Group, a Georgia general partnership, and the radiation
oncology division of ICON


 


4.                                       Shyam B.
Paryani, M.D., P.A., an individual Florida professional services corporation


 


5.                                       PET/CT Center
of North Florida, LLC


 


6.                                       Cyclotron
Center of North Florida, LLC


 


7.                                       All entities
whose primary purpose is to purchase and sell, own, lease, manage and
administer real property or medical office space, including but not limited to
Second 


 


10

















 


City Landowners, Sixth City Landowners, Eighth City Landowners, and
Ninth City Landowners, each Florida general partnerships


 


11