AMENDMENT #2 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.2
THIS AMENDMENT #2 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Amendment #2”) is made
and entered into as of the 21st day of February, 2008 (the “Effective Date”) by and between XXXXX
X. DAL PORTO, an individual (“Dal Porto”) and I-FLOW CORPORATION, a Delaware corporation (the
“Company”).
Background
A. The Company and Dal Porto previously entered into that certain Amended and Restated
Employment dated as of June 21, 2001, as subsequently amended by an Amendment #1 dated as of
February 23, 2006 (collectively, the “Agreement”).
B. The Internal Revenue Service issued final regulations interpreting the rules and standards
under Section 409A of the Internal Revenue Code on April 10, 2007 (the “Final 409A Regulations”).
C. To comply with the Final 409A Regulations, the Company and Dal Porto wish to amend and
modify certain provisions of the Agreement as provided herein, effective as of the Effective Date,
while leaving unchanged all other provisions of the Agreement.
Agreement
In consideration of the foregoing, and for other good and valuable consideration the receipt
of which is hereby acknowledged, Dal Porto and the Company hereby agree as follows:
1.Termination Without Cause. The first paragraph of Section 3(b) and Section 3(b)(i)
and Section 3(b)(ii) of the Agreement are hereby amended and restated as follows:
(b) Termination Without Cause. In the event Dal Porto’s employment as
provided herein is terminated by the Company without cause, or in the event Dal
Porto resigns his employment because his job location is transferred (without his
prior, voluntary consent) to a site more than thirty (30) miles away from his
current place of employment, after having given the Company at least 30 days prior
written notice of his intent to resign and a reasonable opportunity to cure during
such 30-day notice period, the Company shall be obligated to pay and provide and Dal
Porto shall be entitled to receive, as severance, the following payments (to be made
in lump sum immediately upon termination of employment) and benefits:
(i) A cash payment equal to two (2) times the sum of (A) Dal Porto’s annual
salary in effect at the time of termination, plus (B) the average annual
bonus earned by Dal Porto in the previous three full fiscal years;
(ii) Any bonus, or relevant pro rata portion thereof, earned by Dal Porto
for the fiscal year in which the termination occurs;
2. Disability. Section 3(c)(i) of the Agreement is hereby amended and restated as
follows:
(i) In the event that Dal Porto is terminated as a result of a Disability (as
defined below), Dal Porto shall receive amounts equal to 60% of his total
compensation in effect at the time of such termination, with such amount payable in
equal installments in accordance with the Company’s standard payroll practices, but
no less than monthly, until Dal Porto achieves the age of 65, or until such time as
Dal Porto shall have recovered from such disability and is able to secure full time
employment, whichever first occurs. To this end, the Company shall secure
disability coverage for Dal Porto, which coverage shall be sufficient to pay Dal
Porto the amounts set forth in the foregoing sentence. During any such period of
disability, options granted to Dal Porto shall not lapse by virtue of such
disability.
3. Compliance with Section 409A. Section 17 of the Agreement is hereby amended and
restated as follows:
17. Compliance with Section 409A. Notwithstanding any provision of this
Agreement to the contrary, if, at the time of Dal Porto’s termination of employment
with the Company, Dal Porto is a “specified employee” as defined in Section 409A of
the Code, and one or more of the payments or benefits received or to be received by
Dal Porto pursuant to this Agreement would become subject to the additional tax
under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed
under Section 409A of the Code (“Section 409A Taxes”) if provided at the time
otherwise required under this Agreement, no such payment or benefit will be provided
under this Agreement until the earliest of (a) the date which is six (6) months
after Dal Porto’s “separation from service” or (b) the date of Dal Porto’s death, or
such shorter period that, as determined by the Company, is sufficient to avoid the
imposition of Section 409A Taxes. The provisions of this Section 17 shall only
apply to the minimum extent required to avoid Dal Porto’s incurrence of any Section
409A Taxes. In addition, if any provision of this Agreement would cause Dal Porto
to incur any penalty tax or interest under Section 409A of the Code or any
regulations or Treasury guidance promulgated thereunder, the Company may reform such
provision to maintain to the maximum extent practicable the original intent of the
applicable provision without violating the provisions of Section 409A of the Code.
4. No Other Changes. Except as otherwise set forth herein, all terms and provisions
of the Agreement remain unchanged and in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have entered into this Amendment #2 as of the Effective
Date.
| I-FLOW CORPORATION | XXXXX X. DAL PORTO | |||||||||
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxx X. Dal Porto
|
|||||||
| Chairman, President and | ||||||||||
| Chief Executive Officer | ||||||||||
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