1
Exhibit 10.12
RADIATION THERAPY SERVICES, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
THIS EMPLOYMENT AGREEMENT is made as of this April 1, 1998, among
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. ("Employee"), and RADIATION THERAPY SERVICES, INC.,
a Florida corporation ("Employer"). Employer and Employee agree as follows:
1. EMPLOYMENT. Employer does hereby employ Employee and Employee does
hereby accept such employment under the terms set forth in this Agreement.
2. RESPONSIBILITIES. Employee shall be a Physician Manager of Employer,
with such duties and responsibilities as such position normally entails, as
modified or further directed by the Board of Directors of Employer. Employee is
concurrently herewith entering into a Physician Employment Agreement (the
"Physician Agreement") with Employer's subsidiary, 21st Century Oncology, Inc.,
("21st Century") to be employed by 21st Century as a physician.
3. FAITHFUL PERFORMANCE. Employee agrees to perform the duties assigned
to Employee faithfully and industriously to the reasonable satisfaction of
Employer.
4. TERM. The term of this Agreement shall be five (5) years beginning
on the date first written above subject, however, to prior termination as
hereafter provided. This Agreement shall be automatically renewed for one year
terms on each anniversary date of this Agreement following the initial five (5)
year term unless either party gives notice to the other party at least ninety
(90) days in advance of that anniversary date that the Agreement is not to be
renewed.
5. COMPENSATION. A. Employer shall pay Employee a salary for Employee's
services hereunder equal to Sixty Thousand Dollars ($60,000.00); payable in
equal installments every other week in a manner consistent with Employer's
customary payroll system. Employee also is subject to such rights and
obligations as may be set forth from time to time in Employer's Handbook for
Employees.
B. Prior to an initial public offering of the stock of
Employer, Employee may also receive such bonus payments as the Board of
Directors of Employer may, at its sole discretion, determine on a monthly basis.
2
C. Subsequent to an initial public offering of the stock of
Employer, Employee may also receive such bonuses or pay increases as the Board
of Directors of Employer may, at its sole discretion, determine.
6. VACATION AND OTHER BENEFITS. Employee shall be entitled to twenty
(20) vacation days with pay during each twelve months of employment hereunder.
Employee may be entitled to additional vacation days with pay upon the prior
written consent of the Chief Executive Officer of Employer. Employee shall also
be entitled to such other employee benefits as may be made available to other
executives of Employer.
7. CONFIDENTIALITY. It is understood between the parties that during
the term of employment hereunder, Employee will be dealing with confidential
information and processes which are Employer's property, used in the course of
Employer's business, including without limitation the names of Employer's
patients, referring physicians, health maintenance organization or other managed
care contracts, suppliers, equipment, records, procedures, and methods of
operation. Employee agrees that such information is important, material, and
confidential and gravely affects the successful conduct of the business of
Employer and Employer's goodwill, and that any breach of the terms of this
paragraph is a material breach of this Agreement. Employee agrees not to
disclose to anyone, directly or indirectly, any of such confidential
information, or use it other than in the course of employment with Employer. All
documents that Employee prepares, or confidential information that might be
given to Employee in the course of employment hereunder, are the exclusive
property of Employer and shall remain in Employer's possession. Under no
circumstances shall any confidential information or documents be removed without
Employer's consent to such removal first being obtained. Employee further agrees
that, upon the termination of this Agreement for any reason, Employee will not
take or retain, without the express, written consent of Employer, any papers,
lists, books, files, or other documents, or copies of such items, or other
information of any kind belonging to Employer. All ideas, inventions,
trademarks, and other developments or improvements conceived by Employee, alone
or with others, during the term of his employment, whether or not during working
hours, that are within the scope of Employer's business operations or that
relate to any of Employer's work or projects, are the exclusive property of
Employer. Any and all patentable or copyrightable material, or other
intellectual property, developed by Employee as described in the preceding
sentence, shall be considered work for hire and shall be solely the property
- 2 -
3
of the Employer. This provision shall survive the termination of this Agreement
for any reason.
8. FULL TIME AND ATTENTION. Except as otherwise authorized by Employer,
including Employee's employment under the Physician Agreement, Employee will
devote full time and attention to the rendition of the services pursuant to the
terms of this Agreement on behalf of Employer and to the furtherance of
Employer's best interests as assigned and scheduled by Employer.
9. NON-COMPETITION.
A. During the term of this Agreement and any renewal period,
Employee shall not undertake any employment except as directed and authorized by
Employer.
B. In the event of the termination of this Agreement for any
reason, Employee agrees not to directly or indirectly compete with Employer or
any of its Affiliates by providing management or other services on behalf of any
person or entity engaged in any business which Employer or any of its Affiliates
engage in at the time of termination, or which business Employer or any of its
Affiliates are actively considering engaging in at the time of termination, in
any state in which any radiation oncology center or any other business operated
by Employer or any of its Affiliates is located, or in any state immediately
adjacent to such state, for a period of two (2) years after the date of such
actual termination of this Agreement. The purpose of this covenant is to protect
Employer from the irreparable harm it will suffer if Employee competes with
Employer after having participated in the initial public offering of Employer
and after learning Employer's business procedures, office and practice policies,
and the special and confidential professional procedures developed by Employer.
An "Affiliate" of Employer means (i) any person or entity directly or indirectly
controlled by Employer; (ii) any person or entity directly or indirectly
controlling Employer; (iii) any subsidiary of Employer if Employer has a fifty
percent (50%) or greater ownership interest in the subsidiary; or (iv)
Employer's parent entity if the parent has a fifty percent (50%) or greater
ownership interest in Employer. Employee may not assign Employee's rights,
obligations and interest in this Agreement to any other person.
- 3 -
4
C. The parties agree that in the event of any breach or
attempted breach of any of the covenants set out in section 9.B (the "Covenant
Not to Compete"), Employer will be entitled to equitable relief by way of
injunction or otherwise, in addition to any remedy at law which may be
available. The parties agree that any violation or threatened violation by
Employee of the Covenant Not to Compete will cause Employer to suffer
irreparable harm. The parties agree that Employer's remedy of an injunction is
not the exclusive remedy for breach of the Covenant Not to Compete and that a
court may grant such additional relief as is reasonable. The parties acknowledge
that Employee is a shareholder of Employer who wishes to sell some of his
interest in Employer in connection with an initial public offering of the stock
of Employer, and that the Covenant Not to Compete is given in anticipation of
increasing the value of Employee's interest in connection therewith.
D. In the event Employee breaches the Covenant Not to Compete,
in addition to the injunctive relief to which Employer shall be entitled under
the law, Employee shall immediately repay to Employer any amounts paid by
Employer hereunder after the termination of this Agreement, and all severance or
termination pay, if any, paid pursuant to this Agreement. Employer may offset
against any amounts owed Employee pursuant to this Agreement any amounts
Employee owes Employer hereunder.
E. In the event the Covenant Not to Compete shall be
determined by a court of competent jurisdiction to be unenforceable by reason of
its geographic or temporal restrictions being too great, or by reason that the
range of activities covered is too great, or for any other reason, section 9
shall be interpreted to extend over the maximum geographic area, period of time,
range of activities or other restrictions as to which it may be enforceable.
10. TERMINATION.
A. If Employee dies or becomes disabled during any term of
this Agreement, Employer agrees to pay to Employee's designated beneficiary as
salary continuation or to Employee one (1) year of Employee's monthly Base
Salary, plus such additional Base Salary as Employee may have become entitled to
pursuant to section 5 above, payable monthly, beginning with the date of death
or commencement of disability; thereafter, in the case of disability and for the
duration thereof, Employee shall receive benefits to the extent provided under
Employer's disability plan (the "Disability Plan"). For purposes of this
Agreement, "disability" shall have the meaning given in the Disability Plan.
- 4 -
5
B. If Employee voluntarily gives written notice at least
ninety (90) days in advance of the last day of any term hereunder to terminate
this Agreement at the expiration of such term and continues to render services
as provided herein until at the end of the term, Employer agrees to pay to
Employee as severance pay two (2) months of Employee's monthly Base Salary for
the immediately preceding twelve month period, plus such additional Base Salary
as Physician may have become entitled to pursuant to section 5 above, payable
monthly, beginning with the date of actual termination of this Agreement. Said
severance pay shall be in addition to the compensation earned by Employee during
the notice period required herein. Employee must render services as provided
hereunder during the 90 day period. The required notice and continued service is
of the essence, and if Employee does not give the required notice and continue
to be available for full-time exclusive service to Employer pursuant to this
Agreement during the notice period, Employee shall not be entitled to any
severance pay.
C. If Employee voluntarily terminates his employment for any
reason prior to the end of a term or without giving notice in accordance with
section 10.B of this Agreement, Employer shall have no liability to Employee
other than for accrued and unpaid Base Salary prior to the date of termination.
If Employee voluntarily terminates his employment as a result of a change in the
location of Employer's headquarters operations by more than fifty (50) miles or
as a result of a significant reduction in Employee's responsibilities, Employer
agrees to pay to Employee as severance pay the lesser of two (2) years Base
Salary or the balance of the Term of this Agreement, plus such additional Base
Salary as Employee may have become entitled to pursuant to section 5 above,
payable monthly, beginning with the date of actual termination of this
Agreement.
D. This Agreement shall be deemed to be terminated for "cause"
by Employer, and the relationship of Employer and Employee existing between the
parties shall be deemed severed without any liability on the part of Employer to
Employee for further compensation or remuneration (other than for accrued and
unpaid Base Salary prior to the date of termination) in the event Employee shall
(i) fail or refuse, after reasonable written notice, to comply with the
reasonable policies, standards, and regulations from time to time established
and directed by the Board of Directors of Employer, or to perform faithfully or
diligently the provisions of this Agreement or the duties as contemplated
hereunder; (ii) display unprofessional, unethical, immoral, or fraudulent
conduct; or (iii) materially breach this Agreement.
- 5 -
6
E. If Employer terminates Employee without "cause" (as defined
in subsection D above), Employer shall pay Employee all compensation provided
for in section 5 above until the end of the then-current term of this Agreement.
F. The provisions of sections 8 and 9 above shall survive
termination of this Agreement for any reason.
G. If the Physician Agreement is terminated for any reason,
but this Agreement is not terminated, this Agreement shall continue in full
force and effect, except that the annual Base Salary shall be increased to Three
Hundred Thousand Dollars ($300,000.00) and Employee shall be expected to devote
full time and attention to the rendition of services pursuant to this Agreement.
H. If this Agreement is terminated for any reason, but the
Physician Agreement is not terminated, Employee shall not receive the
post-termination or severance benefits set forth in subsections A and B above.
11. AUTHORITY TO CONTRACT. Employee shall have no authority to enter
into any contracts binding upon Employer, or to create any obligations on the
part of the Employer, except to the extent that corporate resolutions of
Employer acknowledge such authority.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties regarding the subject matter hereof and supersedes all previous
negotiations, discussions, and agreements between the parties concerning the
subject matter hereof.
13. AGREEMENT BINDING. This Agreement shall be binding on and inure to
the benefit of the respective parties hereto and their executors,
administrators, heirs, personal representatives, successors and assigns.
14. CONSTRUCTION. This Agreement shall be governed by the laws of the
State of Florida.
- 6 -
7
15. ATTORNEYS FEES. In the event either party (the "Plaintiff") sues
the other for breach of this Agreement and prevails, such prevailing Plaintiff
shall be entitled to recover from the other party his or its attorney's fees
expended in connection with such litigation.
16. INDEMNIFICATION. Employer shall indemnify Employee, to the full
extent permitted by law, against all liabilities incurred as a result of, and
expenses reasonably sustained in the defense or in the compromise or settlement
of, any civil, criminal or other action, suit or proceeding, by or on behalf of
whomever brought, to which Employee may be a party or in which he may be
otherwise involved by reason of his having been an officer of Employer or an
Affiliate.
17. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by registered mail to
either party at its last known residence.
18. ASSIGNMENT. Employer may assign its rights, obligations and
interest in this Agreement to an Affiliate of Employer.
19. SEVERABILITY. In the event that any paragraph or clause of this
Agreement is held or declared by a final and unappealable decision to be void,
illegal, or unenforceable for any reason, the offending paragraph or clause
shall, if possible, be reformed by the authority making such decision in such
manner as will implement, to the fullest extent legally permissible, the
expressed intentions of the parties hereto without illegality or
unenforceability. If such reformation is not possible, the offending paragraph
or clause shall be stricken and all other paragraphs and clauses of this
Agreement shall nevertheless remain in full force and effect; provided, however,
that if striking such offending clause or paragraph would result in a
substantial change in the contractual relationship between the parties, thereby
depriving either or both of the parties of the benefit of the fundamental
economic bargain herein set forth, this Agreement shall become voidable upon
demand of the party whose interests are thus impaired.
20. 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.
- 7 -
8
21. 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.
22. COUNTERPARTS. This Agreement may be executed in two (2)
counterparts, each of which shall be considered an original.
23. MODIFICATIONS. Any modifications to this Agreement shall be made in
writing only and shall be by agreement of Employer and Employee. This Agreement
replaces and supersedes any prior agreement between the parties relating to
employment, including any agreement between Employee and Associates in Radiation
Medicine, P.C.
IN WITNESS WHEREOF, Employer and Employee have executed this Employment
Agreement the day and year first written above.
RADIATION THERAPY SERVICES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
By:
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
Chief Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
- 8 -
9
21ST CENTURY ONCOLOGY, INC.
PHYSICIAN EMPLOYMENT AGREEMENT
------------------------------
THIS AGREEMENT is made and entered into as of April 1, 1998 by
and between 21ST CENTURY ONCOLOGY, INC., a Florida corporation (hereinafter
referred to as "21st Century") or its assignee and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
(hereinafter referred to as the "Physician").
WITNESSETH:
WHEREAS, 21st Century is a Florida corporation that, inter
alia, operates radiation therapy centers ("Centers"); and
WHEREAS, 21st Century is subsidiary of Radiation Therapy
Regional Services, Inc. ("RTSI"), a Florida corporation that has ownership
interests in other corporations (the "Affiliates") that operate Centers; and
WHEREAS, Physician is a radiation oncologist who is licensed
to practice medicine in certain states in which 21st Century operates Centers;
WHEREAS, Physician is concurrently herewith entering into an
Executive Employment Agreement (the "Executive Agreement") with RTSI; and
WHEREAS, 21st Century wishes to engage Physician to provide
medical services as a radiation oncologist at certain of the Centers operated by
21st Century according to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
promises hereinafter contained, the parties agree as follows:
1. TERM. Subject to the conditions set forth below, Physician
agrees to provide services as a radiation oncologist at the Centers specified
pursuant to this Agreement to such persons as are accepted by 21st Century as
patients of the Centers. Unless terminated earlier by either party as provided
herein, this Agreement shall be for five (5) years beginning the date hereof,
and shall be automatically renewed for one (1) year terms from year to year
thereafter on the anniversary date of this Agreement unless either party gives
written notice to
10
the other party at least ninety (90) days in advance of the renewal date of its
intent not to renew the Agreement.
2. ACCEPTANCE BY PHYSICIAN. Physician agrees to provide
medical services at the Centers on the terms and conditions herein set forth.
Except as otherwise authorized by 21st Century, including Physician's employment
under the Executive Agreement, Physician agrees that, throughout the term of
this Agreement, Physician will devote full time and attention to the rendition
of the professional services to the furtherance of 21st Century's best interests
as assigned and scheduled by 21st Century or 21st Century's designee. Physician
shall be assigned to practice at such Centers as may reasonably be requested by
21st Century and consented to by Physician, which consent shall not be
unreasonably withheld. Prior to the date hereof and throughout the term of this
Agreement and any renewal period hereof, Physician will be licensed to practice
medicine in Florida and those states in which 21st Century and Physician may
agree. Physician shall become a member of such organizations and shall
participate in such hospital staff responsibilities and such other organizations
as 21st Century, in consultation with Physician, shall agree. Physician will be
expected to reside in the general vicinity and participate in the life of the
community surrounding a Center designated by 21st Century after consultation
with Physician. Physician shall attend tumor boards, cancer conferences, and
Cancer Society meetings as part of Physician's duties hereunder. Physician also
will be responsible for an on-call schedule and medical rounds at hospitals and
consultations. Physician agrees that in the rendition of such professional
services at the Centers, Physician will comply with the reasonable policies,
standards and regulations of 21st Century established from time to time. This
Agreement is exclusive in favor of 21st Century and Physician may not perform
services for other providers of radiation therapy or oncology services without
the prior written approval of 21st Century.
3. COMPENSATION. A. 21st Century agrees to pay Physician for
the services provided hereunder a base annual salary of Two Hundred Forty
Thousand Dollars ($240,000.00 ("Base Salary"). 21st Century shall deduct from
the Base Salary otherwise payable to Physician any costs of fringe benefit
plans, disability plan and, except as provided in section 3.D below, other
health and welfare benefit plans in which Physician participates. 21st Century
shall pay all medical malpractice insurance premiums related to Physician's
employment.
- 2 -
11
B. Prior to an initial public offering of the stock
of 21st Century or of the parent corporation of 21st Century, in addition to the
Base Salary, after the first anniversary of the date on which Physician first
began to provide medical services at the Centers and thereafter, Physician may
receive as additional compensation such bonuses as the Board of Directors of
21st Century may, at its sole discretion, determine on a monthly basis.
C. 21st Century shall, at its expense, cover
Physician (but not other members of Physician's family) in any medical plan
maintained by 21st Century; provided, however, that Physician shall be subject
to the eligibility rules of said plan.
4. TERMINATION OTHER THAN FOR CAUSE. A. If Physician dies or
becomes disabled during any term of this Agreement, 21st Century agrees to pay
to Physician's designated beneficiary as salary continuation or to Physician one
(1) year of Physician's monthly Base Salary, plus such additional Base Salary as
Physician may have become entitled to pursuant to section 3 above, payable
monthly, beginning with the date of death or commencement of disability;
thereafter, in the case of disability and for the duration thereof, Physician
shall receive benefits to the extent provided under 21st Century's disability
plan (the "Disability Plan"). For purposes of this Agreement, "disability" shall
have the meaning given in the Disability Plan.
B. If Physician voluntarily gives written notice at least ninety (90)
days in advance of the last day of any term hereunder to terminate this
Agreement at the expiration of such term and continues to render services as
provided herein until at the end of the term, 21st Century agrees to pay to
Physician as severance pay two (2) months of Physician's monthly Base Salary for
the immediately preceding twelve month period, plus such additional Base Salary
as Physician may have become entitled to pursuant to section 3 above, payable
monthly, beginning with the date of actual termination of this Agreement. Said
severance pay shall be in addition to the compensation earned by Physician
during the notice period required herein. Physician must render services as
provided hereunder during the 90 day period. The required notice and continued
service is of the essence, and if Physician does not give the required notice
and continue to be available for full-time exclusive service to 21st Century
pursuant to this Agreement during the notice period, Physician shall not be
entitled to any severance pay.
- 3 -
12
C. If Physician voluntarily terminates his or her employment for any
reason prior to the end of a term or without giving notice in accordance with
section 1 of this Agreement, 21st Century shall have no liability to Physician
other than for accrued and unpaid Base Salary prior to the date of termination.
D. If 21st Century terminates Physician without "cause" (as defined in
section 5 below), 21st Century shall pay Physician all compensation provided for
in section 3 above until the end of the then-current term of this Agreement.
E. If the Executive Agreement is terminated for any reason, but this
Agreement is not terminated, this Agreement shall continue in full force and
effect, except that the annual Base Salary shall be increased to Three Hundred
Thousand Dollars ($300,000.00), and Physician shall be expected to devote full
time and attention to the rendition of professional services pursuant to this
Agreement.
F. If this Agreement is terminated for any reason, but the Executive
Agreement is not terminated, Physician shall not receive the post-termination or
severance benefits set forth in subsections A and B above.
5. TERMINATION FOR CAUSE. This Agreement shall be deemed to be
terminated for "cause" by 21st Century, and the relationship of 21st Century and
Physician existing between the parties shall be deemed severed without any
liability on the part of 21st Century to Physician for further compensation or
remuneration (other than for accrued and unpaid Base Salary prior to the date of
termination) upon the occurrence of any of the following:
(a) A final and unappealable suspension, revocation,
or cancellation of Physician's right to perform medical
services in any state in which he has a license;
(b) The final and unappealable placing or imposing of
any restrictions or limitations, by any governmental authority
having jurisdiction over Physician, upon Physician so that
Physician cannot engage in the medical services contemplated
hereunder;
- 4 -
13
(c) In the event Physician shall fail or refuse to
comply after reasonable notice with the reasonable policies,
standards, and regulations of 21st Century from time to time
established, or if Physician fails to perform services at the
places and times reasonably scheduled by 21st Century;
(d) In the event Physician shall fail or refuse to
perform faithfully or diligently the provisions of this
Agreement or the duties as contemplated hereunder after
reasonable notice;
(e) In the event Physician displays unprofessional,
unethical, immoral, or fraudulent conduct; or is found guilty
in a final and unappealable ruling of unprofessional or
unethical conduct by any board, institution, organization,
group, or professional society having any privilege or right
to pass upon the conduct of Physician; or should Physician's
conduct materially discredit 21st Century or be materially
detrimental to the reputation, character, and standing of 21st
Century; or
(f) In the event Physician's privileges in any
hospital in which he has privileges are revoked, and such
determinations are final.
6. NON-COMPETITIVE AND RESTRICTIVE AGREEMENTS.
A. During the term of this Agreement and any renewal
period, Physician shall not undertake any professional service except as
directed and authorized by 21st Century and shall not engage in any profession
other than the rendition of the professional services as directed by 21st
Century.
B. In the event of the termination of this Agreement
for any reason, Physician agrees not to directly or indirectly engage in the
practice of radiation therapy or oncology, or otherwise compete with 21st
Century, or any of its physician providers, by practicing as a radiation
therapist or oncologist (i) at any hospital in which physician providers of 21st
Century regularly admit patients, (ii) within any county in which 21st Century
or any of its Affiliates operate a Center, or (iii) or within a radius of
twenty-five (25) miles of any Center of 21st Century or any of its Affiliates,
for a period of two (2) years after
- 5 -
14
the date of such actual termination of this Agreement. The purpose of this
covenant is to protect 21st Century from the irreparable harm it will suffer if
Physician competes with 21st Century after having participated in the initial
public offering of RTRC, and having been introduced to 21st Century's personnel
and patients and after learning special medical procedures used by 21st
Century's physician providers, 21st Century's business procedures, office and
practice policies, and the special and confidential professional procedures
developed by 21st Century.
C. The parties agree that in the event of any breach
or attempted breach of any of the covenants set out in section 7.B (the
"Covenant Not to Compete"), 21st Century will be entitled to equitable relief by
way of injunction or otherwise, in addition to any remedy at law which may be
available. The parties agree that any violation or threatened violation by
Physician of the Covenant Not to Compete will cause 21st Century to suffer
irreparable harm. The parties agree that 21st Century's remedy of an injunction
is not the exclusive remedy for breach of the Covenant Not to Compete and that a
court may grant such additional relief as is reasonable.
D. In the event Physician breaches the Covenant Not
to Compete, in addition to the injunctive relief to which 21st Century shall be
entitled under the law, Physician shall immediately repay to 21st Century any
amounts paid by 21st Century pursuant to section 3.B hereof after the
termination of this Agreement, and all severance or termination pay, if any,
paid pursuant to this Agreement. 21st Century may offset against any amounts
owed Physician pursuant to this Agreement any amounts Physician owes 21st
Century pursuant to paragraph E below for breach of the Covenant Not to Compete.
E. In addition to the injunctive relief to which 21st
Century is entitled under the law and in addition to the payments provided for
in paragraph D above and in order to compensate 21st Century for the damages it
will incur in recruiting and compensating a replacement radiation oncologist and
for the lost business it will suffer, in the event of a breach by Physician of
the Covenant Not to Compete, Physician shall pay to 21st Century a sum equal to
a percentage of the gross ▇▇▇▇▇▇▇▇ of 21st Century for the twelve month period
immediately preceding the termination of this Agreement. The percentage shall be
that formed by dividing the number one by the number equal to the total number
of physician providers of 21st Century, including Physician, on the date of
termination of this Agreement.
- 6 -
15
F. In the event the Covenant Not to Compete shall be
determined by a court of competent jurisdiction to be unenforceable by reason of
its geographic or temporal restrictions being too great, or by reason that the
range of activities covered is too great, or for any other reason, section 7
shall be interpreted to extend over the maximum geographic area, period of time,
range of activities or other restrictions as to which it may be enforceable.
7. NO AUTHORITY TO CONTRACT. Physician shall have no authority
to enter into any contracts binding upon 21st Century or to create any
obligations on the part of 21st Century.
8. 21ST CENTURY'S RIGHT TO INCOME. All fees, compensation,
monies, and other things of value charged by 21st Century and received or
realized as a result of the rendition of medical services by Physician pursuant
to this Agreement shall belong to and be paid and delivered to 21st Century.
9. PHYSICIAN EXPENSES. In consideration of Physician's total
compensation hereunder, 21st Century expects Physician to develop 21st Century's
radiation therapy practice, and to promote the business and services of 21st
Century. 21st Century also expects Physician to maintain an automobile for use
as an Physician and for the purpose of making visits to patients, hospitals,
clinics, seminars, etc. 21st Century also expects Physician to attend such
conventions and seminars as are necessary in order to be fully and currently
informed as to new developments in the field of medicine and 21st Century shall
pay such reasonable expenses as are incurred for such conventions and seminars
so long as those expenses are approved in advance by 21st Century.
10. VACATION AND TIME AWAY. Physician shall be entitled to
four (4) weeks vacation with pay during each year of this Agreement, but no
weeks shall be taken consecutively. Physician may take additional time away from
the practice to attend professional meetings and seminars with the reasonable
expenses paid for by 21st Century with the prior approval of 21st Century. All
time away from practice, including time for vacation and continuing medical
education, shall be scheduled with 21st Century. Physician shall be responsible
for arranging coverage during Physician's absences for vacation and continuing
medical education and shall inform 21st Century of such coverage arrangements.
- 7 -
16
11. RIGHTS ON TERMINATION. Upon termination of this Agreement,
voluntarily or for cause, the parties' rights and obligations shall continue
through any applicable notice period and until those rights and obligations are
satisfied. Except as provided below, upon the termination of this Agreement by
either party and for any reason, Physician shall have no claim or right to 21st
Century's books or records, case histories and reports, memoranda, files,
patient lists, accounts receivable, office locations or telephone numbers, or
other assets or documents relating to 21st Century's professional and business
operations and Physician's dealings with 21st Century's patients. In the event
of termination of this Agreement for any reason, the parties agree that the only
notice to 21st Century's patients of such termination or of the assumption of
private individual practice by Physician shall be made by 21st Century by
written notice to patients stating (1) the fact and date of termination and (2)
that the patients' medical records will be maintained by 21st Century but will
be made available to Physician or any other physician upon request by the
patient in writing to 21st Century. Physician shall upon reasonable notice and
at reasonable times, be permitted to inspect and copy at Physician's own expense
any records of 21st Century relating to patients who have requested in writing
that their records be made available to Physician.
12. NOTICES. Any notice required or permitted to be given
pursuant to this Agreement shall be sufficient if in writing and if sent by
registered mail to either party at its last known residence.
13. CONSTRUCTION. This Agreement shall be governed by the laws
of the State of Florida.
14. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties regarding Physician's provision of medical services at
the Centers and supersedes all previous negotiations, discussions, and
agreements between the parties.
15. ASSIGNMENT. 21st Century may assign its rights,
obligations and interest in this Agreement to an Affiliate of 21st Century. An
"Affiliate" of 21st Century means (i) any person or entity directly or
indirectly controlled by 21st Century; (ii) any person or entity directly or
indirectly controlling 21st Century; (iii) any subsidiary of 21st Century if
21st Century has a fifty percent (50%) or greater ownership interest in the
subsidiary; or (iv) 21st Century's parent entity if the parent has a fifty
percent (50%) or
- 8 -
17
greater ownership interest in 21st Century. Physician may not assign his rights,
obligations and interest in this Agreement to any other person.
16. SEVERABILITY. In the event that any paragraph or clause of
this Agreement is held or declared by a final and unappealable decision to be
void, illegal, or unenforceable for any reason, the offending paragraph or
clause shall, if possible, be reformed by the authority making such decision in
such manner as will implement, to the fullest extent legally permissible, the
expressed intentions of the parties hereto without illegality or
unenforceability. If such reformation is not possible, the offending paragraph
or clause shall be stricken and all other paragraphs and clauses of this
Agreement shall nevertheless remain in full force and effect; provided, however,
that if striking such offending clause or paragraph would result in a
substantial change in the contractual relationship between the parties, thereby
depriving either or both of the parties of the benefit of the fundamental
economic bargain herein set forth, this Agreement shall become voidable upon
demand of the party whose interests are thus impaired.
17. 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.
18. 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.
19. COUNTERPARTS. This Agreement may be executed in two (2)
counterparts, each of which shall be considered an original.
20. MODIFICATIONS. Any modifications to this Agreement shall
be made in writing only and shall be by agreement of 21st Century and Physician.
- 9 -
18
IN WITNESS WHEREOF, the parties have set their hands and seals
the day and year first above written.
21ST CENTURY ONCOLOGY, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
- 10 -
