Exhibit
10.12


 


FIRST AMENDMENT TO EMPLOYMENT AGREEMENT


 


This
first amendment (the “Amendment”) to
the Employment Agreement by and between Oncure Medical Corp. (the “Corporation”) and Charles Joseph Stork (the “Employee”), dated as of December 17, 2008, is hereby
made and entered into effective as of December 17, 2008, by and between
the Corporation and the Employee.


 


WHEREAS, the Corporation and the Employee entered into the
Employment Agreement dated as of March 1, 2008 (the “Agreement”);
and


 


WHEREAS, the Corporation and the Employee desire to amend
the Agreement to conform the Agreement to the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
and Internal Revenue Service guidance thereunder.


 


NOW, THEREFORE, in consideration of the mutual covenants
and agreements of the parties set forth in this Amendment, and other good and
valuable consideration, the parties hereto, intending to be legally bound,
agree as follows:


 


1.             Section 11.11
of the Agreement is hereby amended in its entirety to read as follows:


 


11.11.             Compliance
with Section 409A of the Internal Revenue Code.


 


(a)   All payments of “nonqualified deferred compensation”
(within the meaning of Section 409A of the Code (together with Department
of Treasury regulations and other official guidance issued thereunder, “Section 409A”)) are intended to comply with the
requirements of Section 409A, and shall be interpreted in accordance
therewith.  No party individually or in
combination with any other may accelerate any such deferred payment, except in
compliance with Section 409A, and no amount shall be paid prior to the
earliest date on which it is permitted to be paid under Section 409A.


 


(b)   Unless otherwise expressly provided, any payment of
compensation by the Corporation to the Employee, whether pursuant to this
Agreement or otherwise, shall be made within two and one-half months (21⁄2
months) after the end of the later of the calendar year or the Corporation’s
fiscal year in which the Employee’s right to such payment vests (i.e., is not
subject to a substantial risk of forfeiture for purposes of Section 409A).  Such amounts shall not be aggregated with any
other payments and shall not be subject to the requirements of subsection (d) below
applicable to “nonqualified deferred compensation.”


 


(c)   Notwithstanding anything in this Agreement to the
contrary, to the extent that any payment or benefit constitutes non-exempt “nonqualified
deferred compensation” for purposes of Section 409A, and such payment or
benefit would otherwise be payable or distributable hereunder by reason of the
Employee’s termination of employment, all references to the Employee’s
termination of employment shall be construed to mean a “separation from
service,” as defined in Treasury Regulation Section 1.409A-1(h) (a


 


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“Separation from Service”), and the Employee shall not be
considered to have a termination of employment unless such termination
constitutes a Separation from Service with respect to the Employee.  If this Section 11.11(c) applies,
such payments or benefits that are subject to Section 409A shall be paid
(or, in the event of any installment payments, shall commence to be paid) on
the date that the Corporation determines within sixty (60) days following the
date of the Employee’s Separation from Service.


 


(d)   Notwithstanding anything in Section 11.11(c) to
the contrary, if the Employee is a “specified employee” on the date of the
Employee’s Separation from Service, any benefit or payment that constitutes
non-exempt “nonqualified deferred compensation” (within the meaning of Section 409A)
shall be delayed in order to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of
the Code, and any such delayed payment shall be paid to the Employee in a lump
sum during the ten (10) day period commencing on the earlier of (i) the
expiration of the six-month period measured from the date of the Employee’s
Separation from Service, or (ii) the Employee’s death.  To the greatest extent permitted under Section 409A,
any separate payment or benefit under the Agreement will not be deemed to
constitute “nonqualified deferred compensation” subject to Section 409A
and the six-month delay requirement to the extent provided in the exceptions in
Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or
any other applicable exception or provision of Section 409A.


 


(e)   Section 11.11(d) above shall not apply to
that portion of any amounts payable upon a Separation from Service which shall
qualify as “involuntary severance” under Section 409A because such amount
does not exceed the lesser of (1) two hundred percent (200%) of the
Employee’s annualized compensation from the Corporation for the calendar year
immediately preceding the calendar year during which the Separation from
Service occurs, or (2) two hundred percent (200%) of the annual limitation
amount under Section 401(a)(17) of the Code for the calendar year during
which the Separation from Service occurs.


 


(f)    With respect to any continuation healthcare coverage
provided under the Agreement, if during the period of continuation coverage,
any plan pursuant to which such benefits are provided ceases to be exempt from
the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5),
then an amount equal to each such remaining premium shall thereafter be paid to
the Employee as currently taxable compensation in substantially equal monthly
installments over the remainder of the continuation coverage period.


 


(g)   With respect to any reimbursements or in-kind
benefits, such reimbursements or benefits shall be provided in a manner that
complies with Treasury Regulation Section 1.409A-3(i)(1)(iv), including
the following:  (i) in no event
shall such benefits or reimbursements be provided later than the last day of
the Employee’s taxable year following the taxable year in which the expense was
incurred or obligation arose, (ii) the amount of expenses eligible for
reimbursement, or in-kind benefits provided, during the Employee’s taxable year
may not affect the expenses eligible for reimbursement, or in-kind benefits
provided, in any other taxable year of the Employee, and (iii) the right
to reimbursements or in-kind benefits is not subject to liquidation or exchange
for another benefit.


 


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(h)   For purposes of this Agreement any installment
payments made on separate dates shall be treated as a series of separate and
distinct payments for purposes of Section 409A.


 


(i)    If the parties hereto determine that any payments or
benefits payable under this Agreement intended to comply with Section 409A
do not so comply, the Employee and the Corporation agree to amend this
Agreement, or take such other actions as the Employee and the Corporation deem
necessary or appropriate, to comply with the requirements of Section 409A,
while preserving benefits that are, in the aggregate, no less favorable than
the benefits as provided to the Employee under this Agreement.  If any provision of the Agreement would cause
such payments or benefits to fail to so comply, such provision shall not be
effective and shall be null and void with respect to such payments or benefits,
and such provision shall otherwise remain in full force and effect.  Notwithstanding anything herein to the
contrary, no amendment may be made to this Agreement if it would cause the
Agreement or any payment hereunder not to be in compliance with Code Section 409A.


 


2.             The Agreement, as amended by
this Amendment, shall remain in full force and effect in accordance with the
terms and conditions thereof.  This
Amendment may be executed simultaneously in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Amendment on the date first written above.


 


	
   

  	
  Oncure Medical Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Employee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Charles Joseph Stork

  
	
   

  	
  Name:
  Charles Joseph Stork

  



 


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