Exhibit 10.1


 


EXECUTION
COPY


 


AMENDED AND
RESTATED


EMPLOYMENT
AGREEMENT


 


(Effective
as of February 17, 2010)


 


THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), entered into on this 29th day of March, 2010 and effective as of February 17,
2010 (the “Effective Date”), is by and between
Oncure Medical Corp., a Delaware Corporation (the “Corporation”) and L. Duane Choate (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 Employee
has rendered services to the Corporation upon and subject to the terms,
conditions and other provisions of that certain Employment Agreement between
the Employee and the Corporation dated as of August 27, 2007, as amended
(the “Prior Agreement”)


 


C.            The Corporation
wishes to continue to assure itself of the services of the Employee on the terms,
and subject to the conditions, hereinafter set forth.


 


C.            The Employee
desires to continue 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,
including but not limited to the Prior Agreement. Notwithstanding the forgoing,
this Agreement shall not supersede or effect that certain Retention Bonus
Letter Agreement by and between Employee and the Corporation dated as of February 4,
2010.


 


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.


 


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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.


 


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


 


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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.


 


1.             “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


 


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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.            “Target
Bonus” for any year means the maximum annual bonus payable to the Employee
assuming 100% achievement of all performance criteria for such year.


 


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


 


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 (CEO) 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
Corporation’s President, Chief Financial Officer, Chief Operating Officer,
Chief Information Officer, General Counsel, Human Resources Department and
other functions to be determined by the Employee and the Board. The


 


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Employee shall have such other powers and duties as
may be reasonably agreed upon from time to time by 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.


 


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 one-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


 


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(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 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 the sum of (i) one-half (1/2) of the
Employee’s annual base salary, plus (ii) one-half (1/2) of the Employee’s
Target Bonus, each 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).


 


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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 the sum of:
(i) twelve (12) months of the Employee’s annual base salary as in effect
immediately prior to such termination, plus (ii) an amount equal to one half of the Employee’s Target Bonus
payable for the year in which termination occurs. Such severance pay shall be
paid by the Corporation to the Employee in equal installments in accordance
with the Corporation’s normal payroll practices over a period of twelve months.


 


(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 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 the sum of: (i) twelve (12) months of
the Employee’s annual base salary as in effect immediately prior to such
termination, plus (ii) an amount equal to one half of the Employee’s
Target Bonus payable for the year in which termination occurs.


 


(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.


 


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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.


 


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 five hundred thousand dollars ($500,000) 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, 2010. 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 which is every two
weeks.


 


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 100% of his annual base salary.


 


7.3          Options.  On or as soon
as reasonably practicable following the date hereof, and subject to approval by
the Compensation Committee or Board, the Employee will receive an option to
purchase 644,645 shares of Common Stock, at a per share exercise price equal to
the fair market value per share on the date of grant, pursuant to the terms of
Holdings’ Equity Incentive Plan (the “Stock
Options”). The Stock
Options shall be fully vested on the date of grant with respect to 311,580
shares of Common


 


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Stock, the Stock Options shall vest with respect to
118,184 shares of Common Stock (the “Time Vesting Options”)
monthly over 16 months on the first day of each month following the date of
grant and the Stock Options shall vest with respect to 214,881 shares of Common
Stock (the “Performance Vesting Options”)
based on the rate of return received by the Equity Investors upon a Change of
Control. 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 and shall remain exercisable for a period of three years following any
termination of Employee’s employment with the Corporation other than for Cause.


 


7.4          Co-Investment.  For a period of 90 days
following the Effective 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.


 


7.5          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.


 


7.6          Vacation.  For each twelve
(12) month period during the Term, the Employee will be entitled to six (6) 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.


 


7.7          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,


 


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


 


7.8          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.


 


7.9          Living Accommodations and Relocation Costs.  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 Colorado 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. In the
event that the Employee relocates at the Corporation’s request, the Employee
shall be provided with the appropriate office space, secretarial and clerical
support located at the Corporation’s headquarters.


 


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 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.


 


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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:

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
  10293 E Sheri Lane

  
	
   

  	
   

  	
  Englewood, Co 80112

  
	
   

  	
   

  	
   

  
	
  To the Corporation:

  	
   

  	
  General Counsel

  



 


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 (“dispute”)
and if the dispute
cannot be resolved by negotiation, the parties agree to


 


12

















 


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, including but not limited to the Prior Agreement.
Notwithstanding the forgoing, this Agreement shall not supersede or effect that
certain Retention Bonus Letter Agreement by and between Employee and the
Corporation dated as of February 4, 2010. 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      Indemnification.  With respect to
claims resulting from Employee’s acts or failures to act, or alleged acts or
failures to act, in Employee’s capacity as a director or officer of the
Corporation, the Corporation shall indemnify Employee to the fullest extent
permitted by the laws of the State of Delaware and the Corporation’s
certificate of incorporation and bylaws, in each case as the same currently exists or may hereafter be amended (but, in
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment). In addition, Employee
shall be entitled to the protection of any insurance policies the Corporation
or its Subsidiaries shall elect to maintain generally for the benefit of its
directors and officers. With respect


 


13

















 


to any claims made against Executive for which the
Corporation is obligated to indemnify Employee, Employee will have the right to
employ its own counsel reasonably acceptable to the Corporation at the sole
cost and expense of the Corporation, and the Corporation shall pay for such
counsel as fees are earned and due.


 


11.11      Code
Section 280G.  No amounts payable under Section 4.6
of this Agreement shall be reduced in the event 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).


 


11.12      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 (2-1/2 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) “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 11.12(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.


 


14

















 


(d)           Notwithstanding
anything in Section 11.12(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 11.12(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.


 


(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.


 


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IN WITNESS WHEREOF, the Employee
and the Corporation have executed this Agreement as of this 29th day of March, 2010.


 


 


	
   

  	
   

  	
  THE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Oncure Medical Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Tim Peach

  
	
   

  	
   

  	
   

  	
  Tim Peach, Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE EMPLOYEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ L. Duane Choate

  
	
   

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
  10293 E Sheri Lane

  
	
   

  	
   

  	
  Englewood, Co 80112

  



 

















 


(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


 


 


(Signature
Page Follows)


 


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