Exhibit 10.79


 


EXECUTION
COPY


 


EMPLOYMENT
AGREEMENT


 


THIS 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 HOWARD SHERIDAN
(“Sheridan”).


 


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


 


WHEREAS, Sheridan is
currently chairman of the Company’s Board of Directors (the “Board”) and
provides corporate services to the Company;


 


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 Merger Co, 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, Sheridan and the
Company are currently parties to an Employment Agreement dated as of April,
2004, which will be superseded by this Agreement contingent upon the closing of
the Merger;


 


WHEREAS, the Company wishes
to assure itself of the continued services of Sheridan for the period provided
in this Agreement and Sheridan 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 Sheridan upon the terms and
conditions herein contained, and Sheridan hereby agrees to accept such
employment for the term described below. Sheridan agrees to provide corporate
executive services and support as reasonably required by the Company including
strategic planning, identification, evaluation and negotiation of suitable
mergers and acquisitions, establishing and managing doctor, payor and hospital
relationships and other services and support related to the growth and
development of the Company, and to serve on the Board as requested during the
term of this Agreement.


 


Throughout the term of this
Agreement, Sheridan shall devote his best efforts and such amount of his
business time and services to the business and affairs of the Company as is
reasonably required to perform the services required hereunder as reasonably determined
by the Chief Executive Officer. Sheridan currently serves on the board of
directors of the entities set forth on the attached Exhibit A. Nothing
herein shall preclude Sheridan from (i) 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 Sheridan’s performance under this
Agreement; provided that Sheridan 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 (ii) 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
Sheridan’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 the date of closing of the Merger
(the “Effective Date”). After the expiration of such initial 3 year employment
period, the term of Sheridan’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 Sheridan (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 any reason before the then current term of this
Agreement expires.


 


3. COMPENSATION.


 


(a) Annual
Base Salary. Sheridan shall receive an annual base compensation during the
term of this Agreement at a rate of not less than Three Hundred Thousand
Dollars ($300,000) (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. Sheridan shall be eligible to receive bonuses during the
term of this Agreement at the discretion of the Board or its Compensation
Committee. The bonus amount to be paid to Sheridan in any given year shall be
referred to as Sheridan’s “Bonus.”


 


4. ADDITIONAL
COMPENSATION AND BENEFITS. The Company shall reimburse
Sheridan for all reasonable out-of-pocket expenses he incurs in connection with
the services provided under this Agreement. Sheridan shall be entitled to use
the


 


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Company’s corporate jet in
connection with the conduct of business on behalf of the Company and he will be
entitled to 25 hours of usage per year for personal use.


 


5. PAYMENTS
UPON TERMINATION.


 


(a) Involuntary
Termination. If Sheridan’s employment is terminated by the Company during
the term of this Agreement, Sheridan 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. Sheridan 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 Sheridan shall be entitled to pursuant to this Section 5(a) are
collectively referred to as Sheridan’s “Accrued Compensation”.


 


(b) Severance
Payments. If Sheridan’s employment is terminated by the Company without
Cause, in addition to payment of the Accrued Compensation, the Company shall
also be obligated to make a series of monthly payments to Sheridan for a period
of twelve (12) months immediately following the Termination Date. Each monthly
payment shall be equal to one-twelfth (l/12th) of the sum of (i) Sheridan’s
annual Base Salary, as in effect on the Termination Date and (ii) Sheridan’s
Bonus for the prior year.


 


(c) Disability.
The Company shall be entitled to terminate this Agreement, if the Board
determines that Sheridan 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 Sheridan 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 Sheridan’s Disability, Sheridan
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 Sheridan’s employment is terminated by the Company for Cause,
the amount Sheridan 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 Sheridan 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) Sheridan being
convicted of or entering a plea of guilty or no contest or similar plea with
respect to, a felony; (iii) Sheridan 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


 


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carrying out Sheridan’s
duties (other than resulting from Sheridan’s Disability) or violations of policies
of the Company and/or its subsidiaries resulting in harm to the Company or any
of its subsidiaries; (v) failure, refusal or inability (except where due
to illness or Disability) to perform Sheridan’s duties hereunder or (vi) Sheridan
is terminated or excluded from the Medicare or Medicaid program as a
participating physician. Notwithstanding the foregoing, no termination pursuant
to subsection (iv) or (v) shall be treated as termination for Cause unless
the Board has provided Sheridan 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 Sheridan. If Sheridan resigns or otherwise voluntarily
terminates his employment, Sheridan shall only be entitled to the Accrued
Compensation upon such termination.


 


(f) Release.
In order to receive the payment(s) provided for in this Section 5,
Sheridan must execute and deliver to the Company a release substantially
similar to the form attached hereto as Exhibit B.


 


6. DEATH. If Sheridan
dies during the term of this Agreement, the Company shall pay to Sheridan’s
estate a lump sum payment equal to the sum of (i) Sheridan’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 Sheridan’s
death under any retirement, deferred compensation or other employee benefit
plan maintained by the Company shall be paid to the beneficiary designated by
Sheridan in accordance with the terms of the applicable plan or plans.


 


7. WTTHHOLDING. 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 CONFINDENTIAL INFORMATION. Sheridan 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.” Sheridan 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 Sheridan’s
actions in contravention of this Section 8.


 


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Sheridan 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 Sheridan.


 


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9. PROHIBITION
OF CERTAIN ACTIVITIES. In consideration of the
transactions contemplated hereby and the payment of the Merger Consideration
(as defined in the Merger Agreement), Sheridan 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 Sheridan’s Termination Date; unless Sheridan is terminated
pursuant to Section 5(a), in which case he will not, for a period
beginning on the date of this Agreement and ending three (3) years after
Sheridan’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 Sheridan’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 Sheridan 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: owning an ownership interest or participation
on the board of directors during the term of this Agreement or thereafter in (x) (i) activities
related to imaging initiatives, it being understood that such activities are
not and will not become competitive with the business of the Company, its
subsidiaries, affiliates and/or any of its joint ventures, (ii) real
estate, (iii) banks or (iv) health care related insurance companies,
PPOs and HMOs; provided that (A) Sheridan’s participation with any entity
listed in clause (x) does not materially interfere with Sheridan’s
performance under this 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. Sheridan 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, 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
Sheridan has no other connection or relationship with such entity or person.


 


10. INJUCTIVE
RELIEF. Sheridan 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


 


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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 Sheridan, 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.


 


Sheridan 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, a significant portion of which was paid to Sheridan
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. Sheridan 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. Sheridan 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. Sheridan 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 Sheridan 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 Sheridan.


 


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: 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 Sheridan, below Sheridan’s signature, and if to Sheridan’s legal
representative, to such Person at the address of which the Company is notified
in accordance with this Section 11, 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


 


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.


 


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13. ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the heirs and representatives
of Sheridan 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 Sheridan. The Company may assign this Agreement to any of its
subsidiaries or affiliates.


 


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 Sheridan
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 Sheridan hereby submit to the exclusive
jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment. Sheridan 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.


 


17.WAIWER
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.


 


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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/ Authorized Signatory

  
	
   

  	
   

  	
  Name:

  	
  Authorized Signatory

  
	
   

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SHERIDAN:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Howard Sheridan

  
	
   

  	
  HOWARD SHERIDAN

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ADDRESS:

  



 


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 Board
of Radiology


 


·                             American
Medical Association


 


·                             Arizona
Radiation Therapy Management Services, Inc.


 


·                             California
Radiation Therapy Management Services, Inc.


 


·                             Carolina
Radiation and Cancer Treatment Center, Inc.


 


·                             Edison
Bancshares


 


·                             Imaging
Initiatives


 


·                             Lee County
Medical Society


 


·                             Maryland
Radiation Therapy Management Services, Inc.


 


·                             Michigan
Radiation Therapy Management Services, Inc.


 


·                             MRR, Inc.


 


·                             MRSJ, 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.


 


·                                          NWI, Inc.


 


·                                          Radiation Therapy School for
Radiation Therapy Technology, Inc.


 


·                                          Radiation Therapy Services
International, Inc.


 


·                                          Radiation Therapy Services, Inc.


 


·                                          Riverhill MRI Specialists,
PC


 


·                                          West Virginia Radiation
Therapy Services, Inc


 


·                                          Yonkers Radiation Medical
Practice, PC


 


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EXHIBIT B


 


Form of
Release


 


THIS RELEASE (this “Release”)
is made as of this     th day of
              ,
20  , by and between RADIATION THERAPY SERVICES, INC., a Florida
corporation (the “Company”), and HOWARD SHERIDAN (“Sheridan”).


 


PRELIMINARY
RECITALS


 


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


 


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


 


AGREEMENT


 


In consideration of the
payments due Sheridan 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.                         Sheridan,
intending to be legally bound, does hereby, on behalf of himself and his
agents, representatives, attorneys, assigns, heirs, executors and
administrators (collectively, “Sheridan’s 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 Sheridan or any of Sheridan’s Parties ever had, now has, or
hereafter may have, by reason of any matter, cause or thing whatsoever, from
the beginning of Sheridan’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 Sheridan’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
Sheridan 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
Sheridan of any claim for accrued or unpaid wages, benefits or any other type
of payment.


 


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


 


3.                         Sheridan 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.                         Sheridan
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 Sheridan.


 


6.                         Sheridan
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 Mm 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


 


2

















 


and other rights due
Sheridan 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 Sheridan that Sheridan 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, Sheridan is prohibited from filing or
maintaining, or causing or knowingly permitting the filing or maintaining, of
any such Claim in any such forum. Sheridan 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.
Sheridan 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 Sheridan or Sheridan’s performance or otherwise take any
action which could reasonably be expected to adversely affect Sheridan’s
personal or professional reputation. Similarly, Sheridan 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.                  Sheridan 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


 


3

















 


relationship; provided,
however, that this paragraph shall have no application to any evidence
or testimony requested of Sheridan 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 Sheridan, Sheridan 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 Sheridan 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 Sheridan, 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 Sheridan, 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 Sheridan hereunder shall be binding upon their
respective successors and assigns. The rights of each of the Company and
Sheridan and the rights of the Company Parties shall inure to the benefit of,
and be enforceable by, any of the Company’s, Sheridan’s and the Company Parties’
respective


 


4

















 


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.


 


 


	
   

  	
  [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: