EXHIBIT 10.24
21ST CENTURY ONCOLOGY, INC.
PHYSICIAN EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of March 1, 1999 by and
between 21ST CENTURY ONCOLOGY, INC., a Florida corporation (hereinafter referred
to as "21st Century") or its assignee and XXXXXXXX X. XXXXXX, 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 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; 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 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 an
Employment Agreement with Xxxxx Radiation Therapy, P.A. (a Maryland Professional
Corporation), 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 (said approval having been granted
for Xxxxx Radiation Therapy, P.A. as noted above).
3. COMPENSATION. A. 21st Century agrees to pay Physician for the
services provided hereunder a base annual salary of Six Hundred Twenty Four
Thousand Dollars ($624,000.00) ("Base Salary"). 21st Century shall deduct from
the Base Salary otherwise payable to Physician any salary paid to Physician by
other providers by whom Physician is employed as permitted in Paragraph 2 above.
21st Century shall pay all medical malpractice insurance premiums related to
Physician's employment.
B. Physician may receive as additional compensation such
bonuses as the Board of Directors of 21st Century may, at its sole discretion,
determine.
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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. For
purposes of this Agreement, "disability" shall mean that Physician is incapable
of performing the services required of Physician under this Agreement.
B. If Physician voluntarily terminates 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.
C. 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.
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 she 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;
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(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 she 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 the date of such actual
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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 RTSI, 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 xxxxxxxx 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.
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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 at Physician's expense
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.
11. RIGHTS ON TERMINATION. Upon termination of this Agreement,
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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 find
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, including the Executive Employment Agreement
between Physician and RTSI.
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 greater
ownership interest in 21st Century. Physician may not assign his rights,
obligations and interest in this Agreement to any other person.
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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.
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IN WITNESS WHEREOF, the parties have set their hands and seals the
day and year first above written.
21ST CENTURY ONCOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx, President
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
XXXXXXXX X. XXXXXX, M.D.
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PHYSICIAN EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of August
2003, by and between Radiation Therapy Associates of Western North Carolina,
P.A., a North Carolina P.A., (hereinafter referred to as the "Employer") or its
assignee and Xxxxxxxx Xxxxxx, M.D. (hereinafter referred to as the "Physician").
W I T N E S S E T H :
WHEREAS, Employer is engaged in the practice of radiation therapy in
State of North Carolina; and
WHEREAS, Physician is a radiation oncologist who is licensed to
practice medicine in the State of North Carolina; and
WHEREAS, Physician wishes to be employed by Employer and Employer
wishes to hire Physician to perform professional medical services 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, Employer agrees to
employ Physician and Physician agrees to be employed by Employer to provide
services as a radiation oncologist on behalf of Employer to such persons as are
accepted as patients by the Employer throughout the term of this Agreement.
Unless terminated earlier by either party as provided in section 6 this
Agreement shall be for sixty (60) months beginning on August 1,
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2003 and shall be automatically renewed from year to year thereafter.
2. ACCEPTANCE BY PHYSICIAN. Physician accepts employment with
Employer on the terms and conditions herein set forth, and agrees that during
the period of employment, as defined above, she will devote her necessary time
and attention to the rendition of the professional services in which Employer is
engaged, on behalf of Employer and to the furtherance of Employer's best
interests as assigned and scheduled by the President of Employer or his
designee. Throughout the term hereof, and as a condition of employment
hereunder, Physician will be licensed to practice medicine in the State of North
Carolina. Physician shall be assigned to practice at those Centers in North
Carolina managed by North Carolina Radiation Therapy Management Services, Inc.
(the "Centers"). Physician shall become a member of the County Medical Societies
in those counties where the Centers are located and shall become a member of the
hospital staffs in those counties and shall participate in hospital staff
responsibilities in those counties. Physician shall attend tumor boards, cancer
conferences, and Cancer Society meetings as part of her duties hereunder.
Physician agrees that in the rendition of such professional services and in all
aspects of her employment she will comply with the reasonable policies,
standards and regulations of the Employer from time to
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time established and as set forth in the Physician Handbook and the Corporate
Compliance Manual.
3. COMPENSATION. Employer agrees to pay Physician as compensation
for her services an annual base salary amount of $5,000.00 (the "Base Salary").
In addition, Employer shall pay the premiums for Physician's malpractice
insurance policy for coverage beginning with the date of employment hereunder.
4. EMPLOYER'S RIGHT TO INCOME. All fees, compensation, monies,
and other things of value, charged by Employer and received or realized as a
result of the rendition of professional medical services by Physician under this
Agreement, shall belong to and be paid and delivered to Employer.
5. VOLUNTARY TERMINATION. This contract may be terminated at any
time by either Employer or Physician upon ninety (90) days prior written notice.
Said written notice shall be sent by Certified Mail to Employer at its principal
place of business, and to Physician at her last known residence address.
6. 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 Employer at 0000 Xxxxxxxx Xxxx., Xxxx Xxxxx, XX 00000 and to Physician at her
last known residence.
7. CONSTRUCTION. This contract shall be governed by the laws of
the State of North Carolina.
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8. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties regarding employment. It may not be changed orally but
only by an agreement in writing signed by the parties against whom enforcement
of any waiver, change, modification, extension, or discharge is sought.
9. ASSIGNMENT. Employer may assign its rights, obligations and
interest in this Agreement to another entity where the majority of shareholders
or partners are substantially the same as shareholders of Employer. Physician
may not assign her rights, obligations and interest in this Agreement to any
other person.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written.
EMPLOYER:
Radiation Therapy Associates of Western
North Carolina, P.A.
BY: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx, M.D., President
PHYSICIAN:
/s/ Xxxxxxxx Xxxxxx
--------------------------------------
Xxxxxxxx Xxxxxx, M.D.
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AMENDMENT TO EMPLOYMENT AGREEMENT
WHEREAS Radiation Therapy Associates of Western North Carolina, P.A.
("Employer") and Xxxxxxxx Xxxxxx, M.D. ("Physician") entered an Employment
Agreement as of August 1, 2003; and
WHEREAS Employer and Physician desire to amend that Employment Agreement;
NOW, THEREFORE, the Employment Agreement entered as of August 1, 2003
between Employer and Physician is hereby amended, effective as of August 1,
2003, as follows:
Section 3. COMPENSATION. The first paragraph of this section is
deleted in its entirety and is replaced with the following: Employer agrees to
pay Physician as compensation for her services a per diem rate of $1,062.00
(the "Base Salary").
The parties hereby agree that all provisions of the Employment Agreement
shall remain in full force and effect except when contradicted by this
Amendment to Employment Agreement, in which case this Amendment shall control.
IN WITNESS WHEREOF, Employer and Physician have hereunto set their hands
and seals effective the date first written above.
EMPLOYER:
Radiation Therapy Associates of Western North Carolina,
P.A.
A North Carolina Professional Corporation
By: /s/ Xxxxxxx X. Xxxxx, M.D.
-------------------------------------
Xxxxxxx X. Xxxxx, M.D., President
PHYSICIAN:
/s/ Xxxxxxxx Xxxxxx, M.D.
-------------------------------------
Xxxxxxxx Xxxxxx, M.D.
RADIATION THERAPY SERVICES, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of this April 1, 1998, among
XXXXXXXX XXXXXX, 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.
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 cir-
cumstances 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
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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. Employee's relationship with the enterprises set forth
on Exhibit A shall not be deemed to violate this provision.
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.
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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 for breach of the Covenant Not to
Compete.
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
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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.
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
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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.
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.
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14. CONSTRUCTION. This Agreement shall be governed by the laws of
the State of Florida.
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 or employee 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.
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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.
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.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx, M.D.
Chief Executive Officer
/s/ XXXXXXXX XXXXXX
---------------------------------------
XXXXXXXX XXXXXX, M.D.
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