EXHIBIT 10.4
AMENDMENT #2
TO
AGREEMENT RE: CHANGE IN CONTROL
THIS AMENDMENT #2 TO AGREEMENT RE:
CHANGE IN CONTROL (this “Amendment #2) is made and entered
into as of the 21st day of February, 2008 (the “Effective
Date”) by and between DONALD M. EARHART, an individual
(“Executive”), and I-FLOW CORPORATION, a Delaware
corporation (“Company”).
Background
A. The Company and Executive
previously entered into that certain Agreement Re: Change in
Control dated as of June 21, 2001, as subsequently amended by
an Amendment #1 to Agreement Re: Change in Control 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 Executive 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, Executive and the Company hereby agree as
follows:
1.
Qualifying Termination . Section 5(a) of
the Agreement is hereby amended and restated as follows:
(a) Executive voluntarily terminates his employment with
the Company and its affiliated companies. Executive, however, shall
not be considered to have voluntarily terminated his employment
with the Company and its affiliated companies if, following, or
within ninety (90) days prior to, the Change in Control,
Executive’s base salary is reduced or adversely modified in
any material respect or Executive’s authority or duties are
materially changed, and subsequent to such reduction, modification
or change Executive elects to terminate his employment with the
Company and its affiliated companies, after having given the
Company at least 30 days prior written notice of such reduction,
modification or change and a reasonable opportunity to cu
