Exhibit 10.77


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”),
dated as of February 21, 2008, by and among RADIATION THERAPY SERVICES
HOLDINGS, INC., a Delaware corporation (“Holdings”), RADIATION THERAPY
SERVICES, INC., a Florida corporation (the “Company”), and JAMES H.
RUBENSTEIN, M.D. (“Executive”).


 


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


 


WHEREAS, the Executive is currently employed by the
Company as its Medical Director and Secretary and is a licensed radiation
oncologist who provides medical services at the Company’s radiation therapy
centers;


 


WHEREAS, the Company has entered into that certain
Agreement and Plan of Merger (the “Merger Agreement”) by and among the Company,
Radiation Therapy Investments, LLC, a Delaware limited liability company,
Holdings and RTS MergerCo, Inc., a Florida corporation (“Merger Sub”),
dated as of October 19, 2007, pursuant to which Merger Sub will merge with
and into the Company (the “Merger”), with the Company as the surviving
corporation in the Merger and a wholly-owned subsidiary of Holdings;


 


WHEREAS, the Executive and the Company are currently
parties to an Executive Employment Agreement dated as of April, 2004 (the “Prior
Executive Agreement”), and the Executive is currently party to a Physician
Employment Agreement, dated as of April, 2004, with 21st Century Oncology, Inc.
(“21st Century Oncology”), a Florida corporation and wholly-owned subsidiary of
the Company (the “Prior Physician Agreement” and, together with the Prior
Executive Agreement, the “Prior Agreements”), which Prior Agreements will be
superseded by this Agreement and a new Physician Employment Agreement (the “Physician
Agreement”) contingent upon the closing of the Merger;


 


WHEREAS, the Company wishes to assure itself of the
continued services of the Executive for the period provided in this Agreement
and the Executive is willing to serve in the employ of the Company for such
period upon the terms and conditions hereinafter set forth; and


 


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 Medical
Director and Secretary during the term of this Agreement. In such capacity, the
Executive shall have the authorities, functions, powers, duties and
responsibilities that are customarily associated with such positions and as the
Chief Executive Officer 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. The Executive currently
serves on the board of directors of the entities set forth on the attached


 

















 


Exhibit A. Nothing herein shall preclude Executive from (i) providing
physician services for up to two (2) days per week pursuant to the
Physician Agreement, (ii) serving or continuing to serve on the board of
directors of entities that do not compete with the Company and to the extent
such service does not materially interfere with Executive’s performance under
this Agreement or the Physician Agreement; provided that Executive will not
agree to serve or actually serve on the board of directors of any entity for
which he has not previously served without first notifying the Board or (iii) 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 or the
Physician 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 the date of closing of the Merger (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 6 below, if the Executive (i) becomes
Disabled (as defined in Section 6(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. Subject to Section 5 below, 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 adjusted from time to time
pursuant to this Agreement, the “Base Salary”), payable in installments
consistent with the Company’s normal payroll schedule. 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, adjust 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 not less than $400,000 per annum (as
the


 


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Board may, but shall not be obligated to adjust 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”); ; provided, that Executive’s 2008 Bonus
shall be determined as set forth on Exhibit B. 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.


 


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 five 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.


 


(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)                                      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. The Company will use commercially reasonable efforts to obtain
on behalf of Executive long-term disability insurance coverage during the term
of the Agreement on such terms and conditions as are standard in the industry.


 


5.                                      PHYSICIAN AGREEMENT. The
compensation set forth in Section 3 above is intended to compensate
Executive for the services he provides while Medical Director and Secretary. If
the Physician Agreement is terminated for any reason, but this Agreement is not
terminated, the Agreement shall remain in full force and effect except that
Executive’s annual base salary shall be increased to $700,000 and subsection (i) of
Section 1 of this Agreement shall be deemed to be of no further force or
effect.


 


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6.                                      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 accrued and unpaid through the date of termination (the
“Termination Date”) and his earned and unpaid Bonus, if any, for the 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 6(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
twenty four (24) months immediately following the Termination Date. Each
monthly payment shall be equal to one-twelfth (1/12th) of the sum of (x) the
Executive’s annual Base Salary, as in effect on the Termination Date, plus (y) the
Executive’s Bonus for the year immediately prior to the year during which
termination occurs; provided that for purposes of this Section 6(b),
Executive’s 2006 and 2007 Bonus shall each be deemed to be $200,000. Executive
shall also be permitted, to the extent permitted under applicable law, to
continue to participate at the Company’s expense in all benefit and insurance
plans, coverage and programs in which he was participating immediately prior to
the Termination Date, for a period of one (1) year from the Termination
Date (Executive will reasonably cooperate with the Company to facilitate the
continuation of such benefits, including, without limitation, electing “COBRA”
coverage as required by the Company). Executive shall not be required to
mitigate the amount of any payment or benefit contemplated by this paragraph.


 


(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
twenty (120) 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 at such time and during the succeeding 120 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.


 


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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 9 and 10 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) substantial
neglect or willful 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 material harm to
the Company or any of its subsidiaries; (v) substantial and repeated
failure, refusal or inability (except where due to illness or Disability) to
perform Executive’s duties hereunder or (vi) termination of the Physician
Agreement for Cause. 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 Medical Director and Secretary 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 30 miles from the current location
of employment without the Executive’s consent, (iv) directed to report to
anyone other than the Chief Executive Officer, without the Executive’s consent
or (v) the Company materially breaches any material term of this
Agreement; provided that no breach of this Agreement by the Company shall be
deemed to constitute “Good Reason” unless the Executive provides the Board with
written notice specifying in reasonable detail the alleged breach and such breach
is not cured within 30 days after the date of such notice.


 


(f)                              Release. In order to
receive the payment(s) provided for in this Section 6, Executive must
execute and deliver to the Company a release substantially similar to the form
attached hereto as Appendix C.


 


(g)                             In the event
that any payment or benefits received or to be received by Executive pursuant
to this Agreement (“Benefits “) would (i) constitute a “parachute payment”
within the meaning of Section 280G of the Internal Revenue Code of 1986,
as


 


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amended (the “Code”), or any comparable successor
provisions, and (ii) but for this subsection, would be subject to the
excise tax imposed by Section 4999 of the Code, or any comparable
successor provisions (the “Excise Tax”), then benefits to which Executive will
be entitled pursuant to this Section 6 (the “Benefits “) shall be either: (i) provided
to Executive in full, or (ii) provided to Executive as to such lesser
extent which would result in no portion of such benefits being subject to the
Excise Tax, whichever of the foregoing amounts, when taking into account
applicable federal, state, local and foreign income and employment taxes, the
Excise Tax, and any other applicable taxes, results in the receipt by
Executive, on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be taxable under
the Excise Tax. Unless the Company and Executive otherwise agree in writing,
any determination required under this subsection shall be made in writing in
good faith by an accountant selected by the mutual agreement of Executive and
the Company (the “Accountant”). The Company shall bear all costs the Accountant
may reasonably incur in connection with any calculations contemplated by this
subsection.


 


(h)                                 For purposes of
this Section 6, the term “Base Salary” as used in this Section 6
shall include the amount of Base Salary (as defined in the Physician Agreement)
in effect immediately prior to such termination under the Physician Agreement.


 


7.                                           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.


 


8.                                           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.


 


9.                                           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


 


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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 9.


 


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 9 are
required for the reasonable protection of the Company and its investments and
for the Company’s reliance on and confidence in the Executive.


 


10.                               PROHIBITION
OF CERTAIN ACTIVITIES. In consideration
of the transactions contemplated hereby and the payment of the Merger
Consideration (as defined in the Merger Agreement), the Executive hereby
covenants and agrees that he will not, for a period beginning on the date of
this Agreement and ending on the later of (a) the fifth anniversary of
this Agreement and (b) three (3) years 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 10 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 6(b) and
such payments are in fact due and payable pursuant to Section 6(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; provided, however that the following shall not be deemed
Prohibited Activities under clause (i) above: (x) owning an ownership
interest or participation on the board of directors during the term of this
Agreement or thereafter in (i) pharmacies, (ii) banks or (iii) health
care related insurance companies, PPOs and HMOs; provided that (A) Executive’s
participation with any entity listed in clause (x) does not materially
interfere with Executive’s performance under this Agreement or the Physician
Agreement and (B) no entity listed in clause (x) owns
or operates and is not under common control with any entity that owns or
operates radiation therapy services or (y) engaging in the practice of
medicine, individually or as part of a group practice of five (5) or less
radiation oncologists following the termination or expiration of this
Agreement; provided, that neither the Executive’s individual nor group practice
(i) has affiliated relationships with any other physician practices or (ii) has
more than one geographic location. The Executive will 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,


 


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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.


 


11.                               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 9 and 10 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 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 9 and 10 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, a significant portion of which was paid to Executive and (b) the
restrictions contained in Sections 9 and 10 hereof (including without
limitation the length of the term of the provisions of Sections 9 and 10
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 9 and 10 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 9 and 10 hereof. The Executive
further acknowledges that the restrictions contained in Sections 9 and 10
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 9 and 10, 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 9 and 10 shall be extended for a period of time equal to the
pendency of such proceeding including all appeals by the Executive.


 


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Sections 8 through 18 of this Agreement shall
survive the termination or expiration of this Agreement.


 


12.                               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 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: Jack Feder


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 the
Executive, below the Executive’s signature, and if to the Executive’s legal
representative, to such Person at the address of which the Company is notified
in accordance with this Section 12, in each case with a copy to:


 


Shumaker, Loop & Kendrick, LLP


101 East Kennedy Boulevard, Suite 2800


Tampa, Florida 33602 


Attn: Darrell C. Smith 


Facsimile: (813) 229-1660


 


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Dr. Daniel Dosoretz


2234 Colonial Boulevard 


Fort Myers, FL 33907


Facsimile: (239) 931-7380


 


13.                               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.


 


14.                               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.


 


15.                               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.


 


16.                               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.


 


17.                               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 Company
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


 


18.                               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.


 


19.                               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.


 


20.                               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.


 


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


 


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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/ Erin L. Russell

  
	
   

  	
   

  	
  Name: Erin L. Russell

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  RADIATION THERAPY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
   

  	
  Name:

  	
  Daniel E. Dosoretz, MD

  
	
   

  	
   

  	
  Title:

  	
  President - CEO

  
	
   

  	
   

  	
   

  	
  Radiation Therapy Services, Inc.

  
	
   

  	
   

  	
   

  	
  21st Century Oncology, Inc.

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/ James H. Rubenstein

  
	
   

  	
  James H. Rubenstein, M.D.

  
	
   

  	
   

  
	
   

  	
  ADDRESS:

  
	
   

  	
  13301 Ponderosa Way

  
	
   

  	
  Fort Myers, FL 33907

  



 


Signature Page to

Employment Agreement


 

















 


EXHIBIT A


 


Board
Memberships


 


·                                          21st Century
Oncology Management Services, Inc.


 


·                                          21st Century
Oncology of Alabama, Inc.


 


·                                          21st Century
Oncology of Arizona, Inc


 


·                                          21st Century
Oncology of Jacksonville, Inc.


 


·                                          21st Century
Oncology of New Jersey, Inc.


 


·                                          21st Century
Oncology of Pennsylvania, Inc.


 


·                                          21st Century
Oncology, Inc.


 


·                                          American
College of Radiation Oncology, Fellow


 


·                                          Arizona
Radiation Therapy Management Services, Inc.


 


·                                          California
Radiation Therapy Management Services, Inc.


 


·                                          Carolina
Radiation and Cancer Treatment Center, Inc


 


·                                          FLAMPAC


 


·                                          Florida Medical
Association


 


·                                          Lee County
Medical Society


 


·                                          Maryland
Radiation Therapy Management Services, Inc.


 


·                                          Michigan Radiation
Therapy Management Services, Inc.


 


·                                          Nebraska
Radiation Therapy Management Services, Inc


 


·                                          Nevada
Radiation Therapy Management Services, Inc.


 


·                                          New England
Radiation Therapy Management Services, Inc.


 


·                                          New York
Radiation Therapy Management Services, Incorporated


 


·                                          North Carolina
Radiation Therapy Management Services, Inc.


 


·                                          Radiation
Therapy School for Radiation Therapy Technology, Inc.


 


·                                          Radiation
Therapy Services International, Inc.


 

















 


·                                          Radiation
Therapy Services Political Action Comm.


 


·                                          Radiation
Therapy Services, Inc.


 


·                                          West Virginia
Radiation Therapy Services, Inc


 


·                                          Yonkers
Radiation Medical Practice, PC


 


14

















 


EXHIBIT B


 


2008 Bonus


 


Executive’s 2008 Bonus shall be determined as
follows: (i) 60% of such bonus shall be based on achievement of the
Targeted EBITDA for 2008 (as such term is used in the Management Stock
Contribution and Unit Subscription Agreement (the “Subscription Agreement”)
between such Executive and Radiation Therapy Investments, LLC, a Delaware
limited liability company), 30% of such bonus shall be based on achievement of
the Targeted Net Debt for 2008 (as such term is used in the Subscription
Agreement) and (iii) 10% of such bonus shall be based on achievement of
discretionary targets which will be developed in consultation with the Chief
Executive Officer. If the Company’s 2008 actual EBITDA is (a) greater than
or equal to 85% and less than 90% of Targeted EBITDA, then Executive’s bonus
pursuant to clause (i) shall be $48,000, or (b) greater than or equal
to 90% and less than 95% of Targeted EBITDA, then Executive’s bonus pursuant to
clause (i) shall be $120,000 or (c) greater than or equal to 95% and
less than or equal to 100%, then an amount between $120,000 and $240,000,
determined based on straight line interpolation between such amounts based on
the percentage achieved. If EBITDA for such year exceeds 100% of Targeted
EBITDA, then for purposes of clause (i) it shall be deemed to be 100%. The
Executive will earn $120,000 if the Company’s actual net debt amount at the end
of the 2008 fiscal year is 100% or a lesser percentage of the Targeted Net Debt
for such year, however if the Company’s actual net debt is greater than 100% of
the Targeted Net Debt for such year, the Executive will instead earn an amount
between $0 and $120,000 if the Company’s actual net debt amount at the end of
the 2008 fiscal year is greater than 100% of the Targeted Net Debt, but less
than 102% of the Targeted Net Debt, based on straight line interpolation
between such amounts based on the percentage achieved. The Executive will
receive an additional $40,000 if the Executive achieves the discretionary
targets developed in consultation with the Chief Executive Officer. In
addition, the Executive will earn a bonus in excess of his Target Bonus in an
amount between $0 and $120,000 if the Company’s actual EBITDA for 2008 is
greater than 100% of the Targeted EBITDA, based on the amount that the Company’s
actual EBITDA for 2008 is greater than 100% of the Targeted EBITDA but less
than 125% of Targeted EBITDA. This amount will be determined based on a
straight line interpolation between such amounts based on the percentage
achieved. For the avoidance of doubt, the Executive is eligible to earn a
maximum bonus of $520,000 for 2008.


 














 


EXHIBIT C


 


Form of
Release


 


THIS RELEASE (this “Release”) is made as of
this         th day of
                           
, 20       , by and between RANGER, INC.,
a Florida corporation (the “Company”), and JAMES H. RUBENSTEIN, M.D. (“Executive”).


 


PRELIMINARY
RECITALS


 


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


 


B.                                    Executive and
the Company are parties to an Executive Employment Agreement, dated as of
                    
, 2008 (the “Agreement”).


 


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.


 


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(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
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


 


3

















 


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 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 office 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


 


4

















 


enforceable by, any of the Company’s, Executive’s
and the Company Parties’ respective 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.


 


*   *  
*   *   *


 


5

















 


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


 


 


	
   

  	
  [NAME]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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 rights or
demands I may have against the Company Parties or any of them.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness: