Exhibit 10.14


 


EXECUTION
COPY


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (the “Agreement”),
dated as of this 17th day of May, 2007 (the “Effective
Date”), is by and between OnCURE Medical Corp., a Delaware
Corporation (the “Corporation”) and David S.
Chernow (the “Employee”).


 


RECITALS


 


A.            The Corporation
owns, manages and intends to acquire additional entities, which provide (1) radiation
therapy, medical oncology and related oncology services and (2) physician
practice management services for medical and radiation oncologists.


 


B.            The Corporation
wishes to retain the services of the Employee on the terms, and subject to the
conditions, hereinafter set forth.


 


C.            The Employee
desires to provide services to the Corporation on the terms, and subject to the
conditions, hereinafter set forth.


 


D.            This Agreement
shall supersede and replace any and all other agreements and arrangements
between the Employee and the Corporation regarding the terms and conditions of
the Employee’s employment with the Corporation and/or any of its Affiliates.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein, the
parties agree as follows:


 


ARTICLE I

DEFINITIONS AND CONSTRUCTION


 


1.1          Definitions.
For purposes of this Agreement, unless the context otherwise requires, the
following terms have the respective meanings set out below.


 


a.          “Affiliate”
shall mean with respect to any specified Person, any Person, whether present or
future, that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, such specified
Person.


 


b.          “Agreement”
shall have the meaning ascribed thereto in the preamble of this Agreement.


 


c.          “Board” shall
mean the members of the board of directors of Holdings.


 


d.          “Cause” shall
have the meaning ascribed thereto in Section 4.2.


 


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e.             “Change of Control” shall mean and
include each of the following: (a) except in connection with a Qualified
Offering, the acquisition, in one or more simultaneous transactions or a series
of related transactions, of beneficial ownership (within the meaning of Rule 13d-3
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) by any Person or any group
of Persons who constitute a group (within the meaning of Section 13d-3 of
the Exchange Act), other than (i) a trustee or other fiduciary holding
securities under an employee benefit plan of Holdings or any Affiliate of
Holdings or (ii) a Person or group in which the Equity Investors control,
directly or indirectly, 50% or more of the voting power immediately following
the transaction, of any securities of Holdings or the Corporation such that, as
a result of such acquisition, such Person or group beneficially owns (within
the meaning of Rule 13d-3 of the Exchange Act), directly or indirectly,
fifty percent ore more of the outstanding voting securities of Holdings or the
Corporation, as applicable; (b) a change in the composition of the Board
such that a majority of the members are not Continuing Directors (except in the
case of a capital raising financing transaction by Holdings or the
Corporation); and (c) the sale of all or substantially all of the assets
of Holdings’ or the Corporation’s to an entity in which the Equity Investors do
not control, directly or indirectly, 50% or more of the voting power
immediately following the transaction.


 


f.              “Common Stock” means the  Common
Stock, $0.001 par value per share, of Holdings.


 


g.             “Compensation Committee” shall mean the
compensation committee of the Board.


 


h.             “Confidential Information” shall mean
non-public information concerning the Corporation, including without
limitation, financial data, statistical data, strategic business plans,
agreements or other material relating to the business, services or activities
of the Corporation and its Affiliates and trade secrets, market reports,
patient files, customer lists, practices, processes, methods, information
relating to government relations and other similar information that is propriety
information of the Corporation or its Affiliates.


 


i.              “Continuing Director” shall mean, as
of any date of determination, any member of the Board who (a) was a member
of the Board on the Effective Date, or (b) was nominated for election or
elected to the Board with the affirmative vote of at least two-thirds (2/3) of
the Continuing Directors who were members of the Board at the time of such
nomination or election.


 


j.              The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a person, whether through the ownership of
voting securities, by contract, or otherwise.


 


k.            “Corporation” shall have the
meaning ascribed thereto in the preamble of this Agreement.


 


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l.              “Disability”
shall have the meaning ascribed thereto in Section 4.4.


 


m.            “Effective Date”
shall have the meaning ascribed thereto in the preamble of the Agreement.


 


n.             “Employee”
shall have the meaning ascribed thereto in the preamble of this Agreement.


 


o.             “Employment
Commencement Date” shall mean the date on which the Employee reports
to the Corporation to commence performance of his duties described in Section 3.1.


 


p.             “Equity
Investors” means Genstar Capital Partners IV, L.P. and the other
Persons making an equity investment in Holdings in connection with the
transaction contemplated by that certain Agreement and Plan of Merger, dated as
of July 5, 2006, by and among the Corporation, OnCURE Acquisition Sub, Inc.
and Holdings, pursuant to which OnCURE Acquisition Sub, Inc. was merged
with and into the Corporation and the Corporation became a wholly-owned
subsidiary of Holdings (the “Merger”).


 


q.             “Holdings”
shall mean OnCURE Holdings, Inc., a Delaware corporation.


 


r.             “Initial
Expiration Date” shall have the meaning ascribed thereto in Section 4.1.


 


s.             “Person”
shall mean any individual, corporation, limited or general partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated organization or any other entity, union, or association, or
government or any agency or political subdivision thereof.


 


t.              “Qualified
Offering” shall mean any offer for sale of equity securities of the
Corporation or Holdings pursuant to an effective registration statement filed
under the Securities Act of 1933, as amended.


 


u.             “Stock
Options” shall have the meaning ascribed thereto in Section 7.4.


 


v.             “Subsidiary”
shall mean with respect to any Person, any corporation, association or other
business entity of which securities representing 50% or more of the combined
voting power of the total voting stock (or in the case of an association or
other business entity which is not a corporation, 50% or more of the equity
interest) is at the time owned or controlled, directly or indirectly, by that
Person or one or more Subsidiaries of that Person or a combination thereof.


 


w.            “Term” shall
have the meaning ascribed thereto in Section 4.1.


 


 


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1.2          “Construction


 


a.             Captions.
The captions of Articles, Sections and Subsections of this Agreement are
inserted for convenience only and shall not affect the meaning or construction of
the contents of this Agreement.


 


b.             Mandatory
and Permissive Acts. As used in this Agreement, the words “shall”
and “will” refer to mandatory acts; the word “may” shall refer to permissive
acts.


 


c.             References.
References in this Agreement to Articles, Sections, and Subsections, unless
specifically stated otherwise, are to the Articles, Sections and Subsections of
this Agreement.


 


d.             Miscellaneous
Terms. The term “or” shall not be exclusive. The terms “herein”,
“hereof’, “hereto”, “hereunder” and other terms similar to such terms shall
refer to this Agreement as a whole and not merely to the specific article,
section paragraph, or clause where such terms may appear. The term “including”
shall mean “including but not limited to”.


 


ARTICLE II

EMPLOYMENT


 


The Corporation hereby
employs the Employee and the Employee hereby accepts employment with the
Corporation, commencing as of the Employment Commencement Date, for the Term,
in the position and with the duties and responsibilities set forth in Article III,
and upon such other terms and conditions set forth in this Agreement.


 


ARTICLE III

POSITION; DUTIES


 


3.1          Position and Duties.
The Employee shall serve as the Corporation’s Chief Executive Officer subject
to the control and direction of the Board with duties and responsibilities that
are customary for such office(s), including, but not limited to, management and
oversight of the President, the Chief Financial Officer, the General Counsel
and the Human Resources Department. The Employee shall have such other powers
and duties as may be reasonably agreed upon from time to time by the Employee
and the Board.


 


3.2          Good Faith Efforts.
The Employee will use his good faith efforts to perform his duties and
discharge his responsibilities pursuant to this Agreement competently,
carefully and faithfully. In determining whether or not the Employee has used
his good faith efforts hereunder, the Corporation’s delegation of authority to
other employees and all surrounding circumstances shall be taken into account
and the Employee’s good faith efforts shall not be judged solely on the
Corporation’s earnings or other results of the Employee’s performance.


 


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ARTICLE IV

TERM OF EMPLOYMENT; TERMINATION


 


4.1          Term. The Employee’s
employment shall commence on the Employment Commencement Date and shall
terminate on the three-year anniversary of the Employment Commencement Date
(the “Initial Expiration Date”); provided, that on the Initial
Expiration Date and on the last day of any subsequent extension to the term of
this Agreement, the term of this Agreement automatically shall be extended for
an additional one (1) year term unless either party gives written notice
to the other not less than three (3) months prior to the end of the then current
term that it does not desire to extend the term of this Agreement.
Notwithstanding the foregoing, the Employee’s employment shall terminate upon
the termination of this Agreement for any reason. The “Term” of this Agreement means the period
from the Effective Date through the Initial Expiration Date, and includes any
renewal term, subject in each case to the earlier termination of this Agreement
for any reason.


 


4.2          Termination by the Corporation. The
Corporation may terminate this Agreement at any time and for any reason or no
reason at all. In the event of a termination of this Agreement by the
Corporation without Cause, subject to the provisions of Section 4.7, the
Corporation shall pay to the Employee the severance pay set forth in Section 4.6.
For purposes of this Agreement, “Cause” means
any of the following: (a) the Employee enters a plea of guilty or nolo contendere to, or is convicted of, a
felony or any other criminal act involving moral turpitude, dishonesty, or
theft; (b) the Employee has committed gross negligence, willful misconduct
or a breach of his fiduciary duties in carrying out his duties hereunder; (c) the
Employee materially breaches this Agreement and fails to cure such breach (in
the event that such breach is capable of being cured) within 30 days following
receipt of notice from the Corporation setting forth in reasonable detail the
nature of such breach; (d) the Employee habitually uses drugs or alcohol
and such use constitutes an abuse thereof; (e) the Employee engages in
willful misconduct in the performance of his duties hereunder that (i) has
a material adverse effect on the Corporation or (ii) constitutes a
material violation of a policy adopted by the Board; or (f) the Employee
engages in material dishonesty or fraud in the performance of his duties
hereunder. Upon any termination of this Agreement by the Corporation for Cause,
the Employee shall have no right to compensation or bonus payments under
Sections 7.1 or 7.2 or to participate in any employee benefit programs (other
than amounts previously earned but not yet paid and such programs as the
Corporation is, by law, required to allow his participation).


 


4.3          Constructive Termination. In the event
that (a) with or without a change in his title or formal corporate action,
there shall be a material diminution in the nature or scope of the authorities,
powers, functions, duties or responsibilities of the Employee set forth in Article III
of this Agreement; (b) the Employee is not appointed to, or is removed
from, the offices or positions provided for in Section 3.1 of this
Agreement; (c) the Employee’s annual base salary is decreased by the
Corporation; (d) at any time following the Employee’s initial permanent
relocation at the request of the Corporation, the Corporation changes its
headquarters greater than 30 miles from its then existing location without the
Employee’s consent; (e) the Corporation fails to pay the Employee’s


 


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compensation or provide the Employee benefits when
due; (f) the Corporation materially breaches this Agreement or the
performance of its duties and obligations hereunder (including any failure to
adopt an annual bonus plan in accordance with the provisions of Section 7.2),
the Employee, by written notice delivered to the Corporation within 30 days of
the event or occurrence constituting a constructive termination hereunder, may
elect to deem his employment hereunder to have been terminated by the
Corporation without Cause, provided that
the Corporation shall have the right to cure any such constructive termination
within 30 days of its receipt of such notice.


 


4.4          Death or Disability. Except for the
Corporation’s obligations contained in this Section 4.4, this Agreement
and the obligations of the Corporation hereunder will terminate upon the
Employee’s death or Disability. For purposes of this Agreement, “Disability” shall mean that for a period
of (6) six months in any twelve (12) month period, the Employee is
incapable of substantially fulfilling his employment responsibilities and
duties because of physical, mental or psychological incapacity resulting from
injury, sickness or disease. Upon termination of this Agreement by reason of
the Employee’s death or Disability, subject to the provisions of Section 4.7,
the Corporation will pay in a lump sum payment to the Employee or his legal
representative, as the case may be, an amount equal to one-half (1/2) of the
Employee’s annual base salary as in effect immediately prior to the date of the
Employee’s death or Disability.


 


4.5          Termination by the Employee. The Employee
may terminate this Agreement and his employment with the Corporation at any
time for any reason or no reason at all by giving the Corporation at least
thirty (30) days’ prior written notice. The Corporation may relieve the
Employee of any or all of his duties and responsibilities at any time following
the giving of any such notice and such action will in no event constitute a
constructive termination under Section 4.3 or termination by the Employee
without Cause (provided, that the Employee shall
be entitled to continue to be compensated in accordance with this Agreement
through the date of termination). Upon any termination of this Agreement by the
Employee pursuant to this Section 4.5, the Employee shall have no right to
compensation or bonus payments under Sections 7.1 or 7.2 or to participate in
any employee benefit programs (other than amounts previously earned but not yet
paid and such programs as the Corporation is, by law, required to allow his
participation).


 


4.6          Termination by the Corporation
Without Cause.


 


(a)           In the event of a termination of this Agreement by the
Corporation without Cause (other than in connection with a Change of Control or
within nine months following a Change of Control), subject to the provisions of
Section 4.7, the Corporation shall pay to the Employee, as severance pay,
an amount equal to twelve (12) months of the Employee’s annual base salary as
in effect immediately prior to such termination. Such severance pay shall be
paid by the Corporation to the Employee in equal installments in accordance
with the Corporation’s normal payroll practices.


 


(b)           In the event of a termination of this Agreement by the
Corporation without Cause in connection with a Change of Control or within nine
months following a Change


 


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of Control, subject to the provisions of Section 4.7,
the Corporation shall pay in a lump sum payment to the Employee, as severance
pay, an amount equal to twelve (12) months of the Employee’s annual base salary
as in effect immediately prior to such termination.


 


(c)           The Corporation agrees that if this Agreement is
terminated by the Corporation or in the event of the death or Disability of the
Employee, (i) the Employee will immediately receive additional
compensation consisting of any and all accrued and unpaid vacation pay, back
wages accrued and accrued sick pay; (ii) except in the event of a
termination for Cause, the Corporation will pay for the Employee’s health
benefits under COBRA until employee becomes eligible for another employer’s
health insurance or for eighteen (18) months, whichever occurs first; and (iii) the
Corporation will provide to the Employee outplacement services, with a firm of
the Employee’s discretion, at a cost not to exceed $15,000.


 


4.7          Release of the Corporation.
As a condition to receiving the severance payments and benefits described
herein, (1) the Employee or, in the event of the Employee’s death or
Disability, the Employee’s legal representative shall be required to execute
and deliver to the Corporation a general release of all claims, including, but
not limited to, claims for wrongful termination, for employment discrimination
under Title VII of the Civil Rights Act of 1964, as amended, and claims under
the Americans with Disabilities Act of 1990, the Equal Pay Act of 1963, the Age
Discrimination in Employment Act of 1967, the Older Workers Benefit Protection
Act of 1990, the Civil Rights Act of 1866, the Family and Medical Leave Act of
1993, the Civil Rights Act of 1991, the Employee Retirement Income Security Act
of 1974 and any equivalent state, local and municipal laws, rules and
regulations, he or his estate or legal representatives may have against the
Corporation and its Subsidiaries and Affiliates, and the officers, directors,
shareholders and agents of each of them, in each case in such form as may be
reasonably requested by the Corporation and (2) the Employee shall comply
with any provisions of this Agreement that survive such termination. The
provisions of this Section 4.7 shall survive any termination of this
Agreement.


 


ARTICLE V

DEVOTION OF THE EMPLOYEE’S TIME TO DUTIES


 


The parties agree that the
Employee will devote substantially full time during normal business hours
(exclusive of periods of sickness and Disability and of such normal holiday and
vacation periods as have been established by the Corporation) to the affairs of
the Corporation; provided, however, that the Employee will be permitted to
devote a limited amount of time, without payment therefore of salary and wages,
to charitable or similar organizations and to such other businesses and/or
investment activities as are not barred by the provisions of Article IX
and which do not interfere with the provision of services hereunder.


 


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ARTICLE VI

OTHER COVENANTS OF EMPLOYEE


 


Business Opportunities. The Employee
agrees to promptly present to the Corporation all potential opportunities for
acquisitions, joint ventures and similar transactions in the cancer care
radiation therapy sector, which are presented to the Employee during the Term
as long as this Agreement is in effect.


 


ARTICLE VII

COMPENSATION AND EXPENSES


 


7.1          Salary. Commencing on
the Employment Commencement Date, the Corporation
shall pay the Employee an annual base salary of Four Hundred Fifty Thousand
dollars ($450,000), which amount shall thereafter be reviewed by the Board or
the Compensation Committee at the end of each fiscal year commencing with the fiscal
year ending December 31, 2007. The Employee’s salary may also be increased
from time to time in the discretion of the Board. The Corporation will pay the
Employee his annual salary in accordance with the Corporation’s normal payroll
practices.


 


7.2          Annual Bonus. The Employee
shall be eligible to earn an annual bonus as determined by the Compensation
Committee or Board. The bonus will be
based upon the achievement by the Corporation of certain objectively
determinable financial performance targets directly tied to revenue growth and
EBITDA performance of the Corporation or such other objectives established by
the Board or the Compensation Committee and approved by the Board. For each
year of the Term, the Corporation shall
adopt an annual bonus program affording the Employee an opportunity to
earn bonuses equal to at least 75% of his annual base salary. For 2007, the
Employee’s target Bonus will be determined in accordance with, and based upon,
the current budget and incentive plan adopted by the Board in connection with
current annual bonus program.


 


7.3          Signing Bonus. In recognition
of the Employee’s assistance and advice during the period from the Effective
Date through the Employment Commencement Date, and contingent upon the
Employment Commencement Date being July 1, 2007, the Corporation will pay
the Employee a signing bonus in the amount of Thirty-seven Thousand Five
Hundred dollars ($37,500) as soon as practicable following the Employment
Commencement Date.


 


7.4          Options. On or as soon
as reasonably practicable following the  Employment Commencement Date, and
subject to approval by the Compensation Committee or Board, the Employee will
receive an option to purchase 644,546 shares of Common Stock, at an exercise
price of $3.50 per share, pursuant to the terms of Holdings’ Equity Incentive
Plan (the “Stock Options”). Two-thirds of the Stock Options
(the “Time Vesting Options”) shall vest over four (4) years and one-third of the
Stock Options (the “Performance Vesting
Options”) shall vest
based on the rate of return received by the Equity Investors upon a Change of
Control. 25% of the Time Vesting Options shall become vested and exerciseable
on the first anniversary of the Employment Commencement Date and 1/36th of the
total remaining number of shares subject to the


 


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Time Vesting Option shall vest on the same day of
each month thereafter. The Performance Vesting Options shall vest as follows:
100% of the Performance Vesting Options shall vest upon the completion of a
Change of Control (a) completed after the Employment Commencement Date and
prior to the two-year anniversary of the Employment Commencement Date in which
the consideration for each share of Common Stock is at least equal to 200% of
the per share price paid by the Equity Investors in connection with the Merger
(the “Initial Common Stock Price”), (b) completed
on or after the two-year anniversary of the Employment Commencement Date and
prior to the three-year anniversary of the Employment Commencement Date in
which the consideration for each share of Common Stock is at least equal to
225% of the Initial Common Stock Price, (c) completed on or after the
three-year anniversary of the Employment Commencement Date and prior to the
four-year anniversary of the Employment Commencement Date in which the
consideration for each share of Common Stock is at least equal to 250% of the
Initial Common Stock Price, or (d) completed on or after the four-year
anniversary of the Employment Commencement Date in which the consideration for
each share of Common Stock is at least equal to 300% of the Initial Common
Stock Price. The Stock Options shall expire one hundred and twenty (120) months
from the date of grant.


 


7.5          Co-Investment.
For a period of 60 days following the Employment Commencement Date, the
Employee will have an opportunity to purchase Common Stock at $3.50 per share
on the same terms and conditions as the Equity Investors.


 


7.6          Expenses.
It is understood and agreed that the services required of the Employee by the
Corporation will require the Employee to incur entertainment, travel and other
expenses on behalf of the Corporation. The Corporation will reimburse or
advance funds to the Employee for all reasonable travel, entertainment and
miscellaneous expenses incurred in connection with the performance of his
duties under this Agreement, provided that the Employee properly accounts for
such expenses to the Corporation in accordance with the Corporation’s
practices. Such reimbursement or advances will be made in accordance with
policies and procedures of the Corporation in effect from time to time relating
to reimbursement of our advances to executive officers.


 


7.7          Vacation.
For each twelve (12) month period during the Term, the Employee will be
entitled to five (5) weeks of vacation without loss of compensation or
other benefits to which he is entitled under this Agreement (pro-rated as
necessary for partial calendar years during the Term), to be taken at such
times as the Employee may select and the affairs of the Corporation may permit.


 


7.8          Employee Benefit Programs.
Without any reduction in the compensation to which the Employee is entitled
under the provisions of Sections 7.1 and 7.2 (other than voluntary payment of
the Employee’s share of premiums or plan contributions), during the Term the
Employee will be entitled to participate in any health insurance, disability,
sick leave, pension insurance or other employee benefit plan that is maintained
at that time by the Corporation for its executive officers including programs
of life and medical insurance for his family and reimbursement of membership
fees in industry related professional organizations. During the Term, the
Corporation shall maintain a policy of directors and officers’ liability
insurance with policy limits and terms appropriate for the


 


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Corporation’s size and business activities, and
shall ensure that the Employee is covered by such policy.


 


7.9          Automobile & Life
Insurance. The Corporation shall provide the Employee with an
after-tax automobile and life insurance allowance of $1,200 per month
commencing on the Employment Commencement Date.


 


7.10        Denver Expenses and Office
Accommodations. For a period of one (1) year following the
Employment Commencement Date, the Corporation will provide the Employee with
suitable office space in the Denver area to accommodate the Employee and one
Executive Assistant. Pursuant to the Employee’s direction, the Corporation
shall employ an Executive Assistant at a reasonable rate of compensation to
assist and support the Employee in the performance of his duties pursuant to
this Agreement. The leasing of office space and hiring of the Executive
Assistant shall be subject to final Board approval. The Board in its sole
discretion may also extend the period during which benefits are provided under
this Section 7.10.


 


7.11        Living Accommodations and
Relocation Costs. For a period of two (2) years following
the Employment Commencement Date, and subject to final Board approval, the
Corporation will provide the Employee with an appropriate corporate apartment
near the Corporation’s headquarters in Newport Beach, California. In addition,
in the event that the Employee relocates at the Corporations request, the
Employee shall be provided with the appropriate office space, secretarial and
clerical support located at the Corporation’s headquarters. The Corporation and
the Employee also acknowledge and agree that in the event the Corporation
requires the Employee to relocate, the Corporation agrees to pay all reasonable
relocation expenses of the Employee up to a maximum amount of One Hundred
Thousand dollars ($100,000). The Corporation agrees that upon presentation of
documentation of such reasonable relocation expenses, that the Employee will be
reimbursed in full for such amounts within fifteen (15) days. For purposes of
this section, reasonable relocation expenses shall include: (a) airfare
for his entire immediate family for one trip from the existing home location to
the relocated home location; (b) round-trip airfare for the Employee and
his spouse and other reasonable expenses incurred in connection with up to two
trips from the existing home location to California for the purpose of locating
a new permanent residence; (c) all reasonable closing costs related to the
sale of the Employee’s residence, including broker commissions, title costs,
tax stamps, document fees; and (c) reasonable moving and shipping costs
for furniture and autos.


 


ARTICLE VIII

COVENANT OF CONFIDENTIALITY


 


The Employee acknowledges
that during his employment he will learn and will have access to Confidential
Information regarding the Corporation and its Affiliates. All records, files,
materials and Confidential Information (excluding personal items obtained by
the Employee in the course of his employment with the Corporation and that do
not contain Confidential Information) are confidential and proprietary and
shall remain the exclusive property of the Corporation or its Affiliates, as
the case may be. The Employee will not, except in connection with and as
required by his performance of his duties under this Agreement, for any reason
use for his own benefit or the benefit of any Person or


 


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entity with which he may be associated or disclose
any such Confidential Information to any Person for any reason or purpose
whatsoever without the prior written consent of the Board unless such
Confidential Information previously shall have become public knowledge through
no action by or omission of the Employee.


 


ARTICLE IX

COVENANT NOT TO COMPETE


 


9.1          Covenant.
Without limitation to any fiduciary or other legal responsibilities that the
Employee may have to the Corporation, the Employee agrees that he will not, for
as long as he is an employee of the Corporation directly or indirectly carry
on, be engaged in, own, operate, control or participate in the ownership,
management, operation or control of or have any financial interest in or
otherwise be connected with, any Person, or business (whether as an employee,
officer, director, agent, security holder, creditor, consultant, or otherwise)
that is or may be engaged in any business activity that is the same as, similar
to, or competitive (directly or indirectly) with any radiation oncology
business engaged in by the Corporation and/or its Affiliates. Notwithstanding
the foregoing, nothing herein shall be deemed or construed to, or shall bar or
preclude the Employee from acquiring directly or indirectly not more than five
percent (5%) of the securities, by value or voting power, in any
publicly-traded company that engages in any activity competitive with any
activity engaged in by the Corporation and/or any of its Affiliates.


 


9.2          Non-Solicitation.
The Employee hereby agrees that during his employment with the Corporation and
for a period of twelve (12) months following the termination of his employment,
without the prior written consent of the Corporation, he shall not, on his own
behalf or on behalf of any Person, directly or indirectly, hire or solicit the
employment of any employee who has been employed by the Corporation and/or any
of its Affiliates at any time during the six (6) months immediately
preceding such date of hiring or solicitation.


 


9.3          Severability.
The parties hereto agree that the covenants of non-competition contained herein
are reasonable covenants under the circumstances. The parties intend that the
covenant contained in Section 9.1 be construed as a series of separate
covenants, one for each city, county, state, territory, possession or federal
district of the United Sates covered by the covenant. Except for geographic
coverage, each separate covenant will be considered identical in terms to the
covenant contained in Section 9.1. If, in any judicial proceeding, a court
refuses to enforce any of the separate covenants described in this Section 9.3,
the unenforceable covenant will be considered eliminated from these provisions
for the purpose of those proceedings to the extent necessary to permit the
remaining separate covenants to be enforced. The Employee agrees that any
breach of the covenants contained in this Article IX would irreparably
injure the Corporation. Accordingly, the Employee agrees that the Corporation,
in addition to pursuing any other remedies it may have at law or in equity,
shall be entitled to obtain an injunction against him from any court having
jurisdiction over the matter, restraining any further violation of this Article IX
and/or withhold any further payments due to the Employee.


 


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ARTICLE X

ASSIGNABILITY


 


The rights and obligations
of the Corporation under this Agreement shall inure to the benefit of and be
binding upon the successors or assigns of the Corporation. The Employee’s
obligations hereunder may not be assigned or alienated and any attempt to do so
by him will be void.


 


ARTICLE XI

MISCELLANEOUS PROVISIONS


 


11.1        Severance of Provision.
If any provision of this Agreement otherwise is deemed to be invalid or
unenforceable or is prohibited by the laws of the state or jurisdiction where
it is to be performed, this Agreement shall be considered divisible as to such
provision and such provision shall be inoperative in such state or jurisdiction
and shall not be part of the consideration moving from either of the parties to
the other. The remaining provisions of this Agreement shall be valid and
binding and of like effect as though such provisions were not included.


 


11.2        Notice and Address. All notices,
offers, acceptance and any other acts under this Agreement (except payment)
shall be in writing, and shall be sufficiently given if delivered to the
addresses in person, by Federal Express or similar receipted delivery, if
mailed, postage prepaid, by certified mail return receipt requested (and in
each case notice shall be deemed delivered and effective upon receipt thereof
by the recipient), as follows:


 


	
  To the Employee:

  	
  David S. Chernow

  
	
   

  	
  4301 South Downing Street

  
	
   

  	
  Englewood, CO 80113

  
	
   

  	
   

  
	
  To the Corporation:

  	
  General Counsel

  
	
   

  	
  OnCURE Medical Corp

  
	
   

  	
  610 Newport Center Drive, Suite 350

  
	
   

  	
  Newport, California 92660

  



 


Or any current address if different from above, or
to such other address as either of them, by notice to the other may designate
from time to time.


 


11.3        Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument. The execution of this Agreement may be by actual or facsimile
signature.


 


11.4        Arbitration of Disputes. In the event
of any controversy or claim, whether based on contract, tort, statute, or other
legal or equitable theory (including but not limited to any claim of fraud,
misrepresentation, or fraudulent inducement) arising out of or related to this
agreement, or any subsequent agreement between the parties


 


12

















 


(“dispute”) and
if the dispute cannot be resolved by negotiation, the parties agree to submit
the dispute to arbitration pursuant to this section and the then-current rules and
supervision of the American Arbitration Association. The arbitration shall be
held in Orange County, California at the office of the American Arbitration
Association. Notwithstanding anything to the contrary herein, any party may
seek injunctive relief for any breach or threatened breach of this Agreement or
any provision of this Agreement from any court of competent jurisdiction.


 


11.5        Attorney’s Fees. In the event
that there is any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof and any
action or proceeding including that in arbitration as provided for in Section 11.4
of this Agreement, is commenced to enforce the provisions of this Agreement,
the prevailing party shall be entitled to an award by the court or arbitrator,
as appropriate, of reasonable attorney’s fees, costs and expenses.


 


11.6        No Violations. The Employee
hereby represents and warrants to the Corporation that the execution, delivery
and performance of this Agreement does not violate or conflict with the terms
of any other agreement to which the Employee is a party.


 


11.7        Withholdings. All payments
to the Employee under this Agreement shall be reduced by all applicable
withholding required by federal, state or local law.


 


11.8        Governing Law. This Agreement
and any dispute, disagreement, or issue of construction or interpretation
arising hereunder whether relating to its execution, its validity, the
obligations provided therein or performance shall be governed or interpreted
according to the internal laws of the State of California without regard to
choice of law considerations.


 


11.9        Entire Agreement. This Agreement
constitutes the entire Agreement between the parties and supersedes all prior
oral and written agreements between the parties hereto with respect to the
subject matter hereof. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change,
waiver, discharge or termination is sought.


 


11.10      Code Section 280G. The foregoing
notwithstanding, to the extent that the total amounts payable to the Employee
under this Agreement or any other plan or agreement would constitute an “excess
parachute payment” within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the “Code”) (as determined in good faith by
the Corporation’s public accountants) then amounts payable under Section 4.6
shall be reduced to the extent necessary to avoid any such amounts constituting
an excess parachute payment.


 


11.11      Code Section 409A. In the event
that the Common Stock of the Corporation or Holdings becomes publicly-traded
and in the event that any payments to the Employee under Section 4.6
constitute non-qualified deferred compensation subject


 


13

















 


to Code Section 409A, then the Corporation may
delay payment of such amounts until the date that is 6 months and one day after
the Employee’s termination of employment, to the extent required to comply with
Code Section 409A.


 


(Signature Page Follows)


 


14

















 


IN WITNESS WHEREOF, the Employee
and the Corporation have executed this Agreement as of this 17 day of May,
2007.


 


 


	
   

  	
   

  	
  THE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  OnCURE Medical Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jeffrey A. Goffman

  
	
   

  	
   

  	
   

  	
  Jeffrey A. Goffman

  
	
   

  	
   

  	
   

  	
  President

  



 


 


	
   

  	
   

  	
  THE EMPLOYEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ David S. Chernow

  
	
   

  	
   

  	
  David S. Chernow

  
	
   

  	
   

  	
  4301 South Downing Street

  
	
   

  	
   

  	
  Englewood, CO 80113

  



 


 


[Signature Page to
Employment Agreement – David S. Chernow]