Exhibit
10.9


 


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 Russell D.
Phillips, Jr. (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.


 


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).  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) one year after the
termination of Seller’s employment with Parent, the Company or any Affiliate of
the Parent or the Company, whether present or future.  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 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 


 


2

















 


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.


 


(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 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 


 


3

















 


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):


 


If to Parent:


 


OnCure
Holdings, Inc.


c/o
Genstar Capital, L.P.


Four
Embarcadero Center, Suite 1900


San
Francisco, California 94111-4191


Attention:


Facsimile:               (415) 834-2383


 


4

















 


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.


 


(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, 


 


5

















 


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.


 


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 


 


6

















 


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 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, 


 


7

















 


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/
  Russell D. Phillips, Jr.

  
	
   

  	
  Name:
  

  	
  Russell
  D. Phillips, Jr.

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


[Signature
Page to Agreement Not to Compete – Russell D. Phillips, Jr.]