Exhibit
10.10


 


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 William L. Pegler
(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


 


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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) six months 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


 


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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


 


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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 teens.


 


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


 


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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,


 


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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


 


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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,


 


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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)


 


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


 


	
   

  	
  PARENT:

  
	
   

  	
   

  
	
   

  	
  

  
	
   

  	
  By:

  
	
   

  	
  Name: Robert J. Wellman

  
	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: William L. Pegler

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
   

  



 


[Signature
Page to Agreement Not to Compete — William L. Pegler]


 

















 


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:

  	
   

  
	
   

  	
  Name: Robert J. Weltman

  
	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
  

  
	
   

  	
   

  
	
   

  	
  Name: William L. Pegler

  
	
   

  	
  Address: 

  
	
   

  	
   

  
	
   

  	
   

  



 


[Signature Page to Agreement
Not to Compete — William L.
Pegler]