Exhibit
10.3


 


FIRST AMENDMENT TO EMPLOYMENT AGREEMENT


 


This
first amendment (the “Amendment”) to
the Employment Agreement by and between Oncure Medical Corp. (the “Corporation”) and Russell D. Phillips, Jr. (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 August 18, 2006 (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/
  Russell D. Phillips, Jr.

  
	
   

  	
   

  
	
   

  	
  Name:
  Russell D. Phillips, Jr.

  



 


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