Exhibit 10.76


 


EXECUTION
COPY


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT
AGREEMENT (“Agreement”), dated as of February 8, 2010, by and among
RADIATION THERAPY SERVICES HOLDINGS, INC., a Delaware corporation (“Holdings”),
RADIATION THERAPY SERVICES, INC., a Florida corporation (the “Company”),
and KERRIN E. GILLESPIE (“Executive”).


 


WHEREAS, the Company is
engaged in the business of providing radiation therapy services to cancer
patients;


 


NOW THEREFORE, in
consideration of the mutual covenants herein contained, the parties, intending
to be legally bound, hereby agree as follows:


 


1.             EMPLOYMENT. The Company hereby agrees to employ the
Executive upon the terms and conditions herein contained, and the Executive
hereby agrees to accept such employment for the term described below. The
Executive agrees to serve as the Company’s Senior Vice President and Chief
Financial Officer during the term of this Agreement and have the duties and
responsibilities as may be reasonably assigned to him by the Chief Executive
Officer or the board of directors of the Company (the “Board”). In such
capacity, the Executive shall have (he authorities, functions, powers, duties
and responsibilities that are customarily associated with such positions and as
the Chief Executive Officer or the Board may reasonably assign to him from time
to time consistent with such positions.


 


Throughout the term of this
Agreement, the Executive shall devote his best efforts and substantially all of
his business time and services to the business and affairs of the Company.
Nothing herein shall preclude Executive from serving or continuing to serve on
the boards or advisory committees of medical, charitable or other similar
organizations to the extent such service does not materially interfere with
Executive’s performance under this Agreement. As periodically requested by the
Board, Executive shall use commercially reasonable efforts to assist the Board
in determining whether Executive’s membership on the board of directors or any
other involvement with any entity could reasonably be expected to result in
health care compliance issues or liability for the Company or any of its
subsidiaries, affiliates and/or joint ventures and to take such actions as are
reasonably requested by the Board to remedy and/or mitigate any such issues or
liability identified by the Board.


 


2.             TERM OF AGREEMENT. The initial three (3) year term
of employment under this Agreement shall commence as of March 15, 2010
(the “Effective Date”), After the expiration of such initial 3 year employment
period, the term of the Executive’s employment hereunder shall automatically be
extended without further action by the parties for successive two (2) year
renewal terms, provided that if either party gives the other party at least one
hundred twenty (120) days advance written notice of its intention to not renew
this Agreement for an additional term, the Agreement shall terminate upon the
expiration of the current term.


 


Notwithstanding the
foregoing, the Company shall be entitled to terminate this Agreement
immediately before the end of the initial term or any renewal term, subject to
a continuing obligation to make the payments, if any, required under Section 5
below, if the


 

















 


Executive (i) becomes
Disabled (as defined in Section 5(c) below), (ii) is terminated
by the Company for Cause or without Cause or (iii) voluntarily terminates
his employment for Good Reason or for any other reason or no reason before the
then current term of this Agreement expires,


 


3.             EXECUTIVE COMPENSATION.


 


(a)           Annual Base Salary. The Executive shall receive an
annual base salary during the term of this Agreement at a rate of not less than
Four Hundred Thousand Dollars ($400,000) (as increased from time to time
pursuant to this Agreement, the “Base Salary”), payable in installments
consistent with the Company’s normal payroll schedule. For the avoidance of
doubt, the Executive’s Base Salary shall be prorated for the 2010 fiscal year.
The Board or its Compensation Committee (the “Compensation Committee”) shall
review this Base Salary at annual intervals, and may, but shall not be
obligated to, increase the Base Salary from time to time as the Board or the
Compensation Committee deems to be appropriate.


 


(b)           Performance Incentive Bonus. The Executive shall
also be entitled to receive an annual performance-based incentive bonus from
the Company during the term of this Agreement with a target bonus amount up to
60% (sixty percent) of the Base Salary (as the Board may, but shall not be
obligated to increase from time to time, the “Target Bonus”), the actual amount
of the bonus to be determined by the Board, in good faith, on an annual basis
pursuant to a bonus plan based on factors including, without limitation, the
Company’s achievement of earnings before interest, taxes, depreciation and
amortization and net debt targets (the “Bonus Plan”). The bonus amount
to be paid to the Executive in any given year pursuant to the Bonus Plan shall
be referred to as the Executive’s “Bonus.” The Bonus shall be paid to the
Executive within thirty (30) days following the availability of the Company’s
annual financial statements and shall be payable in cash; provided, that in no
event shall the Bonus be paid later than the end of the calendar year following
the calendar year to which the Bonus relates.


 


4.             ADDITIONAL COMPENSATION AND BENEFITS. The Executive
shall receive the following additional compensation and welfare and fringe
benefits:


 


(a)           Participation in Benefit Plans. The Executive shall
be eligible to participate in the employee benefit plans and programs
maintained by the Company from time to time for its executives, or for its
employees generally, including without limitation any life, medical, dental,
accidental and disability insurance and profit sharing, pension, retirement,
savings, stock option, incentive stock and deferred compensation plans, in
accordance with the terms and conditions as in effect from time to time.


 


(b)           Vacation. The Executive shall be entitled to no
less than four weeks of vacation (or such greater vacation benefits as may be
provided in the future by the Board or Compensation Committee) during each year
during the term of this Agreement and any extensions thereof, prorated for
partial years, with any unused vacation during any year to accrue and carry-forward
to the next year.


 


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(c)           Business Expenses. The Company shall reimburse the
Executive for all reasonable expenses he incurs in promoting the Company’s
business, including expenses for travel, entertainment of business associates,
service and usage charges for business use of cellular phones and similar
items, upon presentation by the Executive from time to time of an itemized
account of such expenditures.


 


(d)           Relocation Expenses. The Company shall reimburse
the Executive for all necessary and reasonable expenses related to Executive’s
relocation to Ft. Myers, FL area upon presentation by the Executive of an
itemized account of such expenditures.


 


(e)           Other. In addition to the benefits provided pursuant
Sections 4(a), 4(b) and 4(c), the Executive shall be eligible to
participate in such other executive compensation and retirement plans of the
Company as are available generally to other officers, and in such welfare
benefit plans, programs, practices and policies of the Company as are generally
applicable to other key employees, including any deferred compensation plan
made generally available to the senior officers of the Company.


 


5.             PAYMENTS UPON TERMINATION.


 


(a)           Involuntary Termination. If the Executive’s
employment is terminated by the Company during the term of this Agreement, the
Executive shall be entitled to receive his Base Salary and unreimbursed
expenses accrued and unpaid through the date of termination (the “Termination
Date”) and his earned and unpaid Bonus, if any, for the full fiscal year ending
prior to the Termination Date. The Executive shall also receive any
nonforfeitable benefits already earned and payable to him under the terms of
any deferred compensation, incentive or other benefit plan maintained by the
Company, payable in accordance with the terms of the applicable plan. The
payments and benefits that the Executive shall be entitled to pursuant to this Section 5(a) are
collectively referred to as the Executive’s “Accrued Compensation”.


 


(b)           Severance Payments. If the Executive’s employment
is terminated (i) by the Company without Cause or (ii) by the
Executive for Good Reason, in addition to payment of the Accrued Compensation,
the Company shall also be obligated to make a series of monthly payments to the
Executive for a period of eighteen (18) months immediately following the
Termination Date; provided, that the payments that otherwise would have been
made during the sixty (60) day period after the Termination Date shall be made
on the first payroll period after the sixtieth (60th) day following the
Termination Date and shall include payment of any amounts that would otherwise
be due prior thereto. Each monthly payment shall be equal to one-twelfth
(1/12th) of the Executive’s annual Base Salary, as in effect on the Termination
Date.


 


(c)           Disability. The Company shall be entitled to
terminate this Agreement, if the Board determines that the Executive has been
unable to attend to his duties for at least one-hundred and eighty (180) days
because of a medically diagnosable physical or mental condition, and has
received a written opinion from a physician acceptable to the Board that such
condition prevents the Executive from resuming full performance of his duties


 


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at such time and during the
succeeding 180 days or is likely to continue for an indefinite period (any such
condition, a “Disability”). If the Company terminates this Agreement due to
Executive’s Disability, the Executive
shall be entitled to receive the Accrued Compensation and any disability
benefits payable pursuant to any long-term disability plan or other disability
program or insurance policies maintained or provided by the Company.


 


(d)           Termination for Cause. If the Executive’s
employment is terminated by the Company for Cause, the amount the Executive
shall be entitled to receive from the Company shall be limited to the Accrued
Compensation.


 


For
purposes of this Agreement, the term “Cause” shall be limited to (i) any
action by the Executive involving willful disloyalty to the Company, such as
embezzlement, fraud, misappropriation of corporate assets or a breach of the
covenants set forth in Sections 8 and 9 below; (ii) the Executive being
convicted of or entering a plea of guilty or no contest or similar plea with
respect to, a felony; (iii) the Executive being convicted of or entering a
plea of guilty or no contest or similar plea with respect to, any lesser crime
or offense (x) committed in connection with the performance of his duties
hereunder, (y) involving fraud, dishonesty or moral turpitude or (z) that
causes the Company or any of its subsidiaries a substantial and material
financial detriment; (iv) neglect or misconduct in carrying out Executive’s
material duties (other than resulting from the Executive’s Disability) or
violations of policies of the Company and/or its subsidiaries resulting in harm
to the Company or any of its subsidiaries; or (v) failure, refusal or
inability (except where due to illness or Disability) to perform Executive’s
duties hereunder. Notwithstanding the foregoing, no termination pursuant to
subsection (iv) or (v) shall be treated as termination for Cause
unless the Board has provided the Executive with written notice specifying in
reasonable detail the alleged Cause for termination and the Cause is not cured
within 30 days after the date of such notice.


 


(e)           Voluntary Termination by the Executive. If the
Executive resigns or otherwise voluntarily terminates his employment and the
termination is not for Good Reason, the Executive shall only be entitled to the
Accrued Compensation upon such termination.


 


For
purposes of this Agreement, a termination by the Executive shall be for “Good
Reason” if the Executive resigns during the period of three months after the
date the Executive is (i) assigned to a position other than Senior Vice
President or Chief Financial Officer of the Company (other than any such
assignment for Cause or by reason of Disability) without the Executive’s
consent, (ii) assigned duties materially inconsistent with such position
(other than any such assignment for Cause or by reason of Disability) without
the Executive’s consent, and such assignment is not rectified within 15
business days after written notice to the Company, (iii) transferred to a
geographic location of employment more than 50 miles from Ft, Myers, Florida
without the Executive’s consent or (iv) the Company materially breaches
any material term of this Agreement; provided that Good Reason shall not exist
under this paragraph unless the Executive provides the Board with written
notice specifying in reasonable detail the event constituting “Good


 


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Reason” within 90 days of
its occurrence and such breach is not cured within 30 days after the date of
such notice.


 


(f)            Release. In order to receive the severance
payments and benefits hereunder (other than the Accrued Compensation), the
Executive must execute and not revoke a general release of claims in favor of
the Company and Holdings substantially in the form attached hereto as Exhibit A.
To the extent that such release is not executed and delivered (and no longer
subject to revocation, if applicable) within sixty (60) days following the
Termination Date, the Executive shall forfeit all rights to any such severance
payments and benefits.


 


6.             DEATH. If the Executive dies during the term of this
Agreement, the Company shall pay to the Executive’s estate a  lump sum payment equal to the sum of (i) the
Executive’s Accrued Compensation, plus (ii) the product of (x) the
Board’s good faith estimated annual Bonus for the fiscal year during which the
death occurs based on the performance of the Company at the time of death and (y) a
fraction, the numerator of which is the number of whole and partial months in
the fiscal year in which the death occurs through the date of death, and the
denominator of which is 12. In addition, the death benefits payable by reason
of the Executive’s death under any retirement, deferred compensation or other
employee benefit plan maintained by the Company shall be paid to the
beneficiary designated by the Executive in accordance with the terms of the
applicable plan or plans.


 


7.             WITHHOLDING. The Company shall, to the extent permitted
by law, have the right to withhold and deduct from any payment hereunder any
federal, state or local taxes of any kind required by law to be withheld with
respect to any such payment.


 


8.             PROTECTION OF CONFIDENTIAL INFORMATION. The Executive
agrees that he will keep all confidential and proprietary information of the
Company or relating to its business (including, but not limited to, information
regarding the Company’s customers, pricing policies, methods of operation,
proprietary computer programs and trade secrets) confidential, and that he will
not (except with the Company’s prior written consent), while in the employ of
the Company or at any time thereafter, disclose any such confidential
information to any person, firm, corporation, association or other entity, other
than in furtherance of his duties hereunder, and then only to those with a “need
to know.” The Executive shall not make use of any such confidential information
for his own purposes or for the benefit of any person, firm, corporation,
association or other entity (except the Company) under any circumstances during
or at any time after the term of his employment. The foregoing shall not apply
to any information which is already in the public domain, or is generally
disclosed by the Company or is otherwise in the public domain at the time of
disclosure, except if such information is in the public domain as a result of
the Executive’s actions in contravention of this Section 8.


 


The Executive recognizes
that because his Work for the Company will bring him into contact with
confidential and proprietary information of the Company, the restrictions of
this Section 8 are required for the reasonable protection of the Company
and its investments and for the Company’s reliance on and confidence in the
Executive.


 


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9.             PROHIBITION OF CERTAIN ACTIVITIES. In consideration of
the transactions contemplated hereby, the Executive hereby covenants and agrees
that he will not, for a period beginning on the date of this Agreement and
ending eighteen months after such Executive’s Termination Date (i) engage
in any business activities for himself or on behalf of any enterprise in any
capacity or own any interest in any entity which compete or are competitive
with the Company in the business of organizing, establishing, developing,
providing or managing radiation therapy services or services ancillary thereto,
in any state in which the Company, its subsidiaries, affiliates and/or any of
its joint ventures then operate or has plans to operate as of the Executive’s
Termination Date, (ii) interfere or disrupt or attempt to interfere or
disrupt, the relationships between the Company, its subsidiaries, affiliates
and/or joint ventures and any patient, referral source or supplier or other person
having business relationships with the Company, its subsidiaries, affiliates
and/or joint ventures, (iii) solicit, induce or hire, or attempt to
solicit, induce or hire, any employee of the Company, its subsidiaries,
affiliates and/or joint ventures or (iv) publish or make any disparaging
statements about the Company, any affiliate of the Company, or any of their
directors, officers or employees, under circumstances where it is reasonably
foreseeable that the statements will be made public (the activities described
in clauses (i) through (iv) above, collectively, “Prohibited
Activities”). Notwithstanding the foregoing, this Section 9 will be of no
force and effect for the period (the “Toll Period”) during which the Company
fails to make the payments, if any, required under Section 5(b) and
such payments are in fact due and payable pursuant to Section 5(b),
provided that the Toll Period shall not take effect unless the Executive
provides the Board with written notice that such payments are due and payable and
the Company does not make such payments within 30 days after the date of such
notice. The Executive wilt be deemed to be engaged in Prohibited Activities if
he engages or participates in any entity that engages in Prohibited Activities
or becomes affiliated with any person who engages in Prohibited Activities as
an employee, officer, director, consultant, agent, partner, proprietor or other
participant; provided, that the ownership of no more than 2 percent of the
stock of a publicly traded corporation shall not be deemed participation in or
affiliation with an entity or person so long as the Executive has no other
connection or relationship with such entity or person.


 


Notwithstanding anything to
the contrary herein, after the termination of this Agreement, the following
shall not be deemed Prohibited Activities under clause (i) above: working
for a hospital or healthcare system; provided that and only for so long as (i) less
than 10% of such hospital or health care system’s revenues relate to radiation therapy
services, (ii) such hospital or health care system’s (in addition to any
other entity affiliated with such hospital or healthcare system) revenues
related to the provision of radiation therapy services or services ancillary
thereto, in the aggregate, do not exceed $20 million in any fiscal year and (iii) such
hospital or healthcare system is not located within 50 miles of a then existing
or planned Company radiation treatment center.


 


10.           INJUNCTIVE RELIEF. The Executive acknowledges and agrees
that it would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of the covenants set forth in
Sections 8 and 9 of this Agreement and accordingly agrees that the Company
shall be entitled to temporary and injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, to
enforce such provisions


 


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in any action or proceeding
instituted in the United States District Court for the Western District of
Florida or in any court in the State of Florida having subject matter
jurisdiction. This provision with respect to injunctive relief shall not,
however, diminish the Company’s right to claim and recover damages.


 


It is expressly understood
and agreed that although the parties consider the restrictions contained in
this Agreement to be reasonable, if a court determines that the time or
territory or any other restriction contained in this Agreement is an
unenforceable restriction on the activities of the Executive, no such provision
of this Agreement shall be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such extent as such court may
judicially determine or indicate to be reasonable.


 


The Executive acknowledges
and confirms that (a) the restrictive covenants contained in Sections 8
and 9 hereof are reasonably necessary to protect the legitimate business
interests of the Company and Holdings’ interests as the purchaser of the Company
for substantial consideration, and (b) the restrictions contained in
Sections 8 and 9 hereof (including without limitation the length of the term of
the provisions of Sections 8 and 9 hereof) are not overbroad, overlong, or
unfair and are not the result of overreaching, duress or coercion of any kind.
The Executive further acknowledges and confirms that his full and faithful
observance of each of the covenants contained in Sections 8 and 9 hereof will
not cause him any undue hardship, financial or otherwise, and that enforcement
of each of the covenants contained herein will not impair his ability to obtain
employment commensurate with his abilities and on terms fully acceptable to him
or otherwise to obtain income required for the comfortable support of him and
his family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to  the
benefit of a competitor or were to compete with the Company in violation of the
terms of Sections 8 and 9 hereof. The Executive further acknowledges that the
restrictions contained in Sections 8 and 9 hereof are intended to be, and shall
be, for the benefit of and shall be enforceable by, the Company’s successors
and assigns.


 


If the Executive shall be in
violation of any provision of Sections 8 and 9, then each time limitation set
forth in the applicable section shall be extended for a period of time equal to
the period of time during which such violation or violations occur. If the
Company seeks injunctive relief from such violation in any court, then the
covenants set forth in Sections 8 and 9 shall be extended for a period of time
equal to the pendency of such proceeding including all appeals by the
Executive.


 


Sections 7 through 17 of
this Agreement shall survive the termination or expiration of this Agreement.


 


11.          Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when personally
delivered, sent by telecopy or facsimile (with confirmation of receipt), one
day after deposit with a reputable overnight delivery service (charges prepaid)
and three days after deposit in the U.S. Mail (postage prepaid and return
receipt


 


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requested) to the address
set forth below or such other address as the recipient party has previously
delivered notice to the sending party.


 


(a)                                  If to the
Company:



Radiation Therapy Services Holdings, Inc.

c/o Vestar Capital Partners V, L.P.

245 Park Avenue, 41st Floor

New York, NY 10167

Attention: James L. Elrod, Jr.

Facsimile: (212) 808-4922



with copies (which shall not constitute notice) to:



Vestar Capital Partners V, L.P.

245 Park Avenue, 41st Floor

New York, NY 10167

Attention: General Partner

Facsimile: (212) 808-4922



Kirkland & Ellis LLP

Citigroup Center

153 E. 53rd Street

New York, NY 10022

Attention: Michael Movsovich

Facsimile: (212) 446-4900


 


(b)           If to Executive, below Executive’s signature, and if to
Executive’s legal representative, to such Person at the address of which the
Company is notified in accordance with this Section II, in each case with
a copy to:


 


Dr. Daniel
Dosoretz

2234 Colonial Boulevard

Fort Myers, FL 33907

Facsimile: (239) 931-7380


 


12.           SEPARABILITY. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not affect the remaining provisions hereof which
shall remain in full force and effect.


 


13.           ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the heirs and representatives of the Executive and the
assigns and successors of the Company, but neither this Agreement nor any
rights hereunder shall be assignable or otherwise subject to hypothecation by
the Executive. The Company may assign this Agreement to any of its subsidiaries
or affiliates.


 


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14.           ENTIRE AGREEMENT. This Agreement represents the entire
agreement of the parties and shall supersede the Prior Agreements and any other
previous contracts, arrangements or understandings between the Company and the
Executive related to employment. The Agreement may be amended at any time by
mutual written agreement of the parties hereto.


 


15.           GOVERNING LAW. This Agreement shall be construed,
interpreted, and governed in accordance with the laws of the State of Florida,
other than the conflict of laws provisions of such laws.


 


16.           SUBMISSION TO JURISDICTION. Any suit, action or proceeding
with respect to this Agreement, or any judgment entered by any court in respect
of any thereof, shall be brought in any court of competent jurisdiction in the
State of Florida, and each of the Company and the Executive hereby submit to
the exclusive jurisdiction of such courts for the purpose of any such suit,
action, proceeding or judgment. The Executive and the Cornpany hereby
irrevocably each waive any objections which it may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any court of competent jurisdiction in
the State of Florida, and hereby further irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in
any inconvenient forum


 


17.           WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.


 


18.           HEADINGS. The headings contained in this Agreement are
included for convenience only and no such heading shall in any way alter the
meaning of any provision.


 


19.           WAIVER. The failure of either party to insist upon strict
adherence to any obligation of this Agreement shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be in
writing.


 


20.           COUNTERPARTS. This Agreement may be executed in two (2) counterparts,
each of which shall be considered an original.


 


21.           SECTION 409A COMPLIANCE.


 


(a)           The intent of the parties is that payments and benefits
under this Agreement comply with Internal Revenue Code Section 409A and
the regulations and guidance promulgated thereunder (collectively “Code Section 409A”)
and, accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith. To the extent that any provision
hereof is modified in order to comply with Code Section 409A, such
modification shall be made in good faith and shall, to the maximum extent
reasonably possible, maintain the original intent and economic benefit to the
parties hereto of the applicable provision without violating the provisions of
Code


 


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Section 409A. In no
event whatsoever shall the Company or Holdings be liable for any additional
tax, interest or penally that may be imposed on the Executive by Code Section 409A
or damages for failing to comply with Code Section 409A. It is intended
that (i) each installment of the payments provided under this “Agreement”
is a separate “payment” for purposes of Code Section 490A and (ii) that
the payments satisfy, to the greatest extent possible, the exemptions from the
application of Code Section 409A provided under Sections l,409A-1(b)(4),
l.409A-1(b)(iii) and 1.409A-l(b)(v) of the Treasury Regulations.


 


(b)           A termination of employment shall not be deemed to have
occurred for purposes of any provision of this Agreement providing for the
payment of any amounts or benefits upon or following a termination of
employment unless such termination is also a “separation from service” within
the meaning of Code Section 409 A and Section 1.409 A- l(h) of
the Treasury Regulations and, for purposes of any such provision of this
Agreement, references to a “termination,” “termination of employment” or like
terms shall mean “separation from service.” If the Executive is deemed on the
date of termination to be a “specified employee” within the meaning of that
term under Code Section 409A(a)(2)(B) and Section 1.409A-l(h) of
the Treasury Regulations, then with regard to any payment or the provision of
any benefit that is considered deferred compensation under Code Section 409A
payable on account of a “separation from service,” such payment or benefit
shall be made or provided at the date which is the earlier of (i) the
expiration of the six (6)-month period measured from the date of such “separation
from service” of the Executive, and (ii) the date of the Executive’s death
(the “Delay Period”). Upon the expiration of the Delay Period, all payments and
benefits delayed pursuant to this Section (whether they would have
otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid or reimbursed to the Executive in a lump sum, and any
remaining payments and benefits due under this Agreement shall be paid or
provided in accordance with the normal payment dates specified for them herein.


 


(c)           All expenses or other reimbursements under this Agreement
shall be made on or prior to the last day of the taxable year following the
taxable year in which such expenses were incurred by the Executive (provided
that if any such reimbursements constitute taxable income to the Executive,
such reimbursements shall be paid no later than March 15th of the calendar
year following the calendar year in which the expenses to be reimbursed were
incurred), and no such reimbursement or expenses eligible for reimbursement in
any taxable year shall in any way affect the expenses eligible for
reimbursement in any other taxable year, and the right to any reimbursement or
expense may not be subject to liquidation or exchange for another benefit.


 


(d)           For purposes of Code Section 409A, the Executive’s
right to receive any installment payments pursuant to this Agreement shall be
treated as a right to receive a series of separate and distinct payments.
Whenever a payment under this Agreement specifics a payment period with
reference to a number of days (e.g., “payment shall be


 


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made within thirty (30) days”),
the actual date of payment within the specified period shall be within the sole
discretion of the Company.


 


(e)           In no event shall any payment under this Agreement that
constitutes “deferred compensation” for purposes of Code Section 409A be
offset by any other payment pursuant to this Agreement or otherwise.


 


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IN WITNESS
WHEREOF, this Agreement has been duly executed as of the day and year first
above written.


 


	
   

  	
  RADIATION
  THERAPY SERVICES HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
   

  	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
  RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan J. Carey

  
	
   

  	
   

  	
  Name:

  	
  Bryan J. Carey

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/ Kerrin E. Gillespie

  
	
   

  	
  Kerrin E. Gillespie

  
	
   

  	
   

  
	
   

  	
  ADDRESS:

  



 


 


Signature Page to

Employment Agreement


 

















 


EXHIBIT A


 


Form of
Release


 


THIS RELEASE (this “Release”)
is made as of this      th day of
                   ,
20    , by and among RADIATION THERAPY SERVICES MOLDINGS, INC.,
a Delaware corporation (“Holdings”), RADIATION THERAPY SERVICES, INC., a
Florida corporation (the “Company”), and KERRIN E. GILLESPIE (“Executive”).


 


PRELIMINARY
RECITALS


 


A.            Executive, Holdings and the Company are parties to an
Executive Employment Agreement, dated as of                ,
2010 (the “Agreement”).


 


B.            Executive’s employment with the Company has terminated.


 


AGREEMENT


 


In consideration of the
payments due Executive under the Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.             Executive, intending to be legally bound, does hereby,
on behalf of himself and his agents, representatives, attorneys, assigns,
heirs, executors and administrators (collectively, the “Executive Parties”)
REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates,
subsidiaries, parents, joint ventures, and its and their officers, directors,
shareholders, members, and managers, and its and their respective successors
and assigns, heirs, executors, and administrators (collectively, the “Company
Parties”) from all causes of action, suits, debts, claims and demands
whatsoever in law or in equity, which Executive or any of the Executive Parties
ever had, now has, or hereafter may have, by reason of any matter, cause or
thing whatsoever, from the beginning of Executive’s initial dealings with the
Company to the date of this Release, and particularly, but without limitation
of the foregoing general terms, any claims arising from or relating in any way
to Executive’s employment relationship with Company, the terms and conditions
of that  employment relationship,
and the termination of that employment relationship, including, but not limited
to, any claims arising under the Age Discrimination in Employment Act, as
amended, 29 U.S.C. § 621 et seq. (“ADEA”), Title VII of The Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1966, 42
U.S.C. §1981, the Civil Rights Act of 1991, Pub. L. No. 102-166, the
Americans with Disabilities Act, 42 U.S.C, §12101 et seq., the Age
Discrimination in Employment Act, as amended, 29 U.S.C. §621 et seq., the Fair
Labor Standards Act, 29 U.S.C. §201 et seq., the National Labor Relations Act,
29 U.S.C. §151 et seq., the Civil False Claims Act, §31 U.S.C §3729 et seq and
related state false claims act provisions and any other claims under any
federal, state or local common law, statutory, or regulatory provision, now or
hereafter recognized, but not including such claims to payments and other
rights provided Executive under the Agreement. This Release is effective
without regard to the legal nature of the claims raised and without regard to
whether any such


 

















 


claims are based upon tort,
equity, implied or express contract or discrimination of any sort. Except as
specifically provided herein, it is expressly understood and agreed that this
Release shall operate as a clear and unequivocal waiver by Executive of any
claim for accrued or unpaid wages, benefits or any other type of payment.


 


2.             Executive expressly waives all rights afforded by any
statute which limits the effect of a release with respect to unknown claims.
Executive understands the significance of his release of unknown claims and his
waiver of statutory protection against a release of unknown claims.


 


3.             Executive agrees that he will not be entitled to or
accept any benefit from any claim or proceeding within the scope of this
Release that is filed or instigated by him or on his behalf with any agency,
court or other government entity.


 


4.             Executive further agrees and recognizes that he has
permanently and irrevocably severed his employment relationship with the
Company, effective as of the date hereof, that he shall not seek employment
with the Company or any affiliated entity at any time in the future, and that
the Company has no obligation to employ him in the future.


 


5.             The parties agree and acknowledge that the Agreement,
and the settlement and termination of any asserted or unasserted claims against
the Company and the Company Parties pursuant to this Release, are not and shall
not be construed to be an admission of any violation of any federal, state or
local statute or regulation, or of any duty owed by the Company or any of the
Company Parties to Executive.


 


6.             Executive certifies and acknowledges as follows:


 


(a)           That he has read the terms of this
Release, and that he understands its terms and effects, including the fact that
he has agreed to RELEASE AND FOREVER DISCHARGE the Company and all Company
Parties from any legal action or other liability of any type related in any way
to the matters released pursuant to this Release other than as provided in the
Agreement and in this Release.


 


(b)           That he understands the significance
of his release of unknown claims and his waiver of statutory protection against
a release of unknown claims.


 


(c)           That he has signed this Release
voluntarily and knowingly in exchange for the consideration described herein,
which he acknowledges is adequate and satisfactory to him and which he acknowledges
is in addition to any other benefits to which he is otherwise entitled.


 


(d)           That he has been and is hereby
advised in writing to consult with an attorney prior to signing this Release.


 


(e)           That he does not waive rights or
claims that may arise after the date this Release is executed or those claims
arising under the Agreement with respect to payments


 


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and other rights  due Executive on the date of, or during
the period following, the termination of his Employment.


 


(f)            That the Company has provided him
with adequate opportunity, including a period of twenty-one (21) days from the  initial receipt of this Release and all
other time periods required by applicable law, within which to consider this Release
(it being understood by Executive that Executive may execute this Release less
than 21 days from its receipt from the Company, but agrees that such execution
will represent his knowing waiver of such 21-day consideration period), and he
has been advised by the Company to consult with counsel in respect thereof,


 


(g)           That he has seven (7) calendar
days after signing this Release within which to rescind, in a writing delivered
to the Company, the portion of this Release related to claims arising under ADEA
or any other claim arising under any other federal, state or local that
requires extension of this revocation right as a condition to the valid release
and waiver of such claim.


 


(h)           That at no time prior to or
contemporaneous with his execution of this Release has he filed or caused or
knowingly permitted the filing or maintenance, in any state, federal or foreign
court, or before any local, state, federal or foreign administrative agency or
other tribunal, any charge, claim or action of any kind, nature and character
whatsoever (“Claim”), known or unknown, suspected or unsuspected, which he may
now have or has ever had against the Company Parties which is based in whole or
in part on any matter referred to in Section 1 above; and, subject to the
Company’s performance under this Release, to the maximum extent permitted by
law, Executive is prohibited from filing or maintaining, or causing or
knowingly permitting the filing or maintaining, of any such Claim in any such
forum. Executive hereby grants the Company his perpetual and irrevocable power
of attorney with full right, power and authority to take all actions necessary
to dismiss or discharge any such Claim. Executive further covenants and agrees
that he will not encourage any person or entity, including but not limited to
any current or former employee, officer, director or stockholder of the
Company, to institute any Claim against the Company Parties or any of them, and
that except as expressly permitted by law or administrative policy or as required
by legally enforceable order he will not aid or assist any such person or
entity in prosecuting such Claim.


 


7.             The Company (meaning, solely for this purpose, the
Company’s directors and executive officers and other individuals authorized to
make official communications on the Company’s behalf) will not disparage
Executive or Executive’s performance or otherwise take any action which could
reasonably be expected to adversely affect Executive’s personal or professional
reputation. Similarly, Executive will not disparage any Company Party or
otherwise take any action which could reasonably be expected to adversely
affect the personal or professional reputation of any Company Party.


 


8.             Executive agrees that he will not disparage or denigrate
to any person any aspect of his relationship with the Company or any of its
affiliates, nor the character of the Company or any of its affiliates or their
respective agents, representatives, products, or operating methods, whether
past, present, or future, and whether or not based on or with reference to
their past


 


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relationship; provided,
however, that this paragraph shall have no application to any evidence
or testimony requested of Executive by any court or government agency. In the
event any government agency or any of Company’s or any of its affiliates’
present or future labor unions, adverse parties in actual or potential
litigation, suppliers, service providers, employees or customers initiate
communications with the Executive, the Executive agrees that he will only
inform any such persons, consistent with this paragraph, of his change in
status and direct such persons to an appropriate officer or current employee of
the Company.


 


9.             Miscellaneous


 


(a)           This Release and the Agreement, and
any other documents expressly referenced therein, constitute the complete and
entire agreement and understanding of Executive and the Company with respect to
the subject matter hereof, and supersedes in its entirety any and all prior
understandings, commitments, obligations and/or agreements, whether written or
oral, with respect thereto; it being understood and agreed that this Release
and including the mutual covenants, agreements, acknowledgments and
affirmations contained herein, is intended to constitute a complete settlement
and resolution of all matters set forth in Section 1 hereof.


 


(b)           The Company Parties are intended
third-party beneficiaries of this Release, and this Release may be enforced by
each of them in accordance with the terms hereof in respect of the rights
granted to such Company Parties hereunder. Except and to the extent set forth
in the preceding two sentences, this Release is not intended for the benefit of
any Person other than the. parties hereto, and no such other person or entity
shall be deemed to be a third party beneficiary hereof. Without limiting the
generality of the foregoing, it is not the intention of the Company to
establish any policy, procedure, course of dealing or plan of general
application for the benefit of or otherwise in respect of any other employee,
officer, director or stockholder, irrespective of any similarity between any
contract, agreement, commitment or understanding between the Company and such
other employee, officer, director or stockholder, on the one hand, and any
contract, agreement, commitment or understanding between the Company and
Executive, on the other hand, and irrespective of any similarity in facts or
circumstances involving such other employee, officer, director or stockholder,
on the one hand, and Executive, on the other hand.


 


(c)           The invalidity or unenforceability of
any provision of this Release shall not affect the validity or enforceability
of any other provision of this Release, which shall otherwise remain in full
force and effect.


 


(d)           This Release may be executed in
separate counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.


 


(e)           The obligations of each of the
Company and Executive hereunder shall be binding upon their respective
successors and assigns. The rights of each of the Company and Executive and the
rights of the Company Parties shall inure to the benefit of, and be enforceable
by, any of the Company’s, Executive’s and the Company Parties’ respective


 


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successors and assigns. The
Company may assign all rights and obligations of this Release to any successor
in interest to the assets of the Company.


 


(f)            No amendment to or waiver of this
Release or any of its terms shall be
binding upon any party hereto unless consented to in writing by such party.


 


(g)           ALL
ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.


 


*
* * * *


 


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Intending to be legally
bound hereby, Executive and the Company have executed this Release as of the
date first written above.


 


 


	
   

  	
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  Title:

  	
   

  



 


 


READ
CAREFULLY BEFORE SIGNING


 


 


I have read this Release and
have been given adequate opportunity, including 21 days from my initial receipt
of this Release, to review this Release and to consult legal counsel prior to
my signing of this Release. I understand that by executing this Release I will
relinquish certain tights or demands I  may
have against the Company Parties or any of them.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness: