Exhibit
10.4


 


SECOND AMENDMENT TO EMPLOYMENT AGREEMENT


 


This
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is made and
entered into this 1st day of March, 2009 (the “Amendment Effective Date”)
with reference to that certain Employment Agreement (the “Agreement”)
dated August 18, 2006, by and between Oncure Medical Corp. (the “Corporation”)
and Russell D. Phillips, Jr. (the “Employee”).


 


RECITALS


 


A.            The
Employee serves as Executive Vice President, Chief Compliance Officer and
General Counsel of the Corporation.


 


B.            Section 7.1
of the Agreement provides that the Corporation shall pay the Employee an annual
base salary of $275,000, which thereafter shall be reviewed by the Board or the
Compensation Committee at the end of each fiscal year.


 


C.            Section 4.3
of the Agreement provides that in the event specified items occur, including,
but not limited to, a decrease in the Employee’s base salary by the
Corporation, such events shall constitute a constructive termination and the
Employee may elect to deem his employment terminated by the Corporation without
Cause.


 


D.            The
Employee and the Corporation desire to amend the Agreement as set forth herein
to provide for a temporary reduction in the Employee’s base salary along with a
waiver by the Employee of any claim against the Corporation related to
constructive termination under the Agreement with respect to the temporary
reduction in the Employee’s base salary.


 


E.             Terms
not defined in this Amendment shall have the meanings ascribed to them in the
Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing and of the respective covenants
and undertakings hereunder and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, intending to be legally
bound, the parties hereto do hereby agree as follows:


 


1.                                       Amendment.  The Agreement shall be amended as follows:


 


Section 7.1            “Salary”, is amended by adding the following new
sentences:


 


“Notwithstanding the foregoing, from the Amendment Effective Date
through December 31, 2009 the Corporation shall pay the Employee an annual
base salary of $256,511 (the “Temporary Reduction”).  Effective January 1, 2010, the
Corporation shall pay the Employee an annual base salary equal to the annual
base salary in effect immediately prior to the Amendment Effective Date.  The Compensation Committee shall review the
Corporation’s performance on a quarterly basis during 2009 and reinstate the
base salary in effect immediately prior to the Amendment Effective Date, if
appropriate.”


 

















 


Section 4.6            “Termination
by the Corporation Without Cause”, is amended by adding new
subsections (e) and (f):


 


“(e)         The Employee hereby
consents to the Temporary Reduction in base salary and fully releases the
Corporation from any claim of constructive discharge and/or termination without
Cause under the Agreement based upon the temporary reduction in base salary.


 


(f)            In the event the
Employee is terminated without Cause on or after the Amendment Effective Date
through December 31, 2009, the severance pay due to the Employee under
this Section 4.6 shall be based upon the Employee’s annual base salary
immediately in effect prior to the Amendment Effective Date.”


 


2.             General Provisions.


 


2.1.          Reference to and Effect on the
Agreement.  This Amendment modifies the
Agreement to the extent set forth herein, is hereby incorporated by reference
into the Agreement and made a part thereof. 
Except as specifically amended by this Amendment or prior amendments,
the Agreement shall remain in full force and effect and is hereby ratified and
confirmed.  The execution, delivery and
performance of this Amendment shall not constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of the parties to the Agreement.


 


2.2.          Governing Law.  This Amendment 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.


 


2.3.          Captions.  The captions or headings in this Amendment
are made for convenience and general reference only and shall not be construed
to describe, define or limit the scope or intent of the provisions of this
Amendment.


 


2.4.          Severability.  The provisions of this Amendment shall be
deemed severable and if any portion shall be held invalid, illegal or
unenforceable for any reason, the remainder of this Amendment shall be effective
and binding upon the parties.


 


2.5.          Counterparts.  This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. 
Delivery of a copy of this Amendment bearing an original signature by
facsimile transmission or by electronic mail in “portable document format”
shall have the same effect as physical delivery of the paper document bearing
the original signature.


 


2.6.          Parties in Interest.  Nothing expressed or implied in this
Amendment is intended or shall be construed to confer upon or give to any
Person other than the parties hereto any rights or remedies under or by reason
of this Amendment or any transaction contemplated hereby.


 


2

















 


2.7.          No Prejudice.  This Amendment has been jointly prepared by
the parties hereto and the terms hereof shall not be construed in favor of or
against any party on account of its participation in such preparation.


 


IN
WITNESS WHEREOF, the parties hereby execute this Amendment as of the Effective
Date.


 


	
   

  	
  ONCURE
  MEDICAL CORP. 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David S. Chernow

  
	
   

  	
  Name:

  	
  David
  S. Chernow

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Russell D. Phillips, Jr.

  
	
   

  	
  Name:

  	
  Russell
  D. Phillips, Jr.

  



 


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