Exhibit 10.30
FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT
This First Amendment to Employment
Agreement (this “ Amendment ”) is made and
entered into effective as of December 24, 2008, by WALLACE
D. RUIZ (“ Executive ”) and SRI/SURGICAL
EXPRESS, INC. , a Florida corporation (the “
Company ”).
BACKGROUND
Executive and Company entered into
an Employment Agreement dated as of July 1, 2005 (the “
Employment Agreement ”). Executive and Company desire
to amend the Employment Agreement on the terms and conditions set
forth below in order to bring the Employment Agreement into
compliance with Section 409A of the Internal Revenue Code of
1986, as amended (“ Section 409A ”).
OPERATIVE
TERMS
In consideration of the respective
agreements of the parties contained in this Amendment and for other
good and valuable consideration, the parties agree to amend the
Employment Agreement as follows:
1. The definitions of
“Involuntary Termination” and “Severance
Date” in Section 1 of the Employment Agreement are
amended and restated to read as follows:
“ Involuntary
Termination ” means the termination of Executive by the
Company for any reason other than for Cause, death, or Disability
that constitutes an “involuntary separation from
service” within the meaning of Treasury Regulations
Section 1.409A-1(n)(1). To the extent necessary to comply with
Section 409A, references to “termination of
employment,” “separation from service” or
variations thereof in this Agreement shall mean the
Executive’s “separation from service” from the
Company within the meaning of Section 409A(a)(2)(A)(i) and the
default rules of Treasury Regulations
Section 1.409A-1(h).
“ Severance Date
” means the effective date of Executive’s separation
from service from the Company by reason of an Involuntary
Termination. To the extent necessary to comply with
Section 409A, references to the “date of employment
termination” or variations thereof in this Agreement shall
mean the Severance Date.
2. Section 4(a)(ii) of the
Employment Agreement is amended by inserting the following
sentences at the end thereof:
To receive an annual bonus for any
calendar year, Executive must remain employed with the Company
until the time of payment. All annual bonuses shall be paid to
Executive on or after January 1 and on or before March 31
of the year immediately following the year to which the bonus
relates.
3. Section 4(e) of the
Employment Agreement is amended by inserting the following sentence
at the end thereof:
A termination of employment at the
election of the Executive shall be treated as an Involuntary
Termination by reason of this Section 4(e) only if
Executive voluntarily separates from service from the Company
within ninety (90) days following the end of the 90-day period
during which D&O Coverage is not maintained. The foregoing good
reason provision is intended to qualify under Treasury Regulations
Section 1.409A-1(n)(2) to be treated as an involuntary
separation from service, and shall be interpreted and administered
consistently therewith.
4. The penultimate sentence of
Section 8(b)(i) of the Employment Agreement is amended and
restated to read as follows:
In addition, the Company shall
(A) continue to pay to the Executive his Annual Salary as
scheduled for a period of nine (9) months following the
Severance Date, as his sole severance compensation benefit;
provided that such payments will be paid in accordance with
the Company’s payroll dates in effect on the Severance Date,
and such payment dates will not be affected by any subsequent
change in the Company’s payroll practices, and
(B) provided that Executive is eligible for and timely elects
continuation of his health insurance benefits pursuant to COBRA,
for a period of nine (9) months following the Severance Date,
the Company shall pay COBRA premiums in order for Executive to
maintain medical insurance coverage at the level in effect on the
Severance Date; provided , however , that the
Company’s obligation to pay Executive’s COBRA premiums
will cease immediately in the event Executive becomes eligible for
group health insurance during such nine (9) month period, and
Executive agrees to promptly notify the Company if he becomes
eligible to be covered by group health insurance during such
period.
5. Section 8(b)(ii) of the
Employment Agreement is amended by inserting the following sentence
at the end thereof:
If the Executive has not executed
and delivered the release referenced in the first sentence of this
Section 8(b)(ii) with all periods for revocation
thereof expired as of the date that is sixty (60) days after
the Severance Date (“ Required Release Date ”),
the Executive shall forfeit the right to receive the foregoing
severance compensation. Any severance compensation that is not
deferred compensation within the meaning of Section 409A shall
commence upon the second payroll date following the first date on
which the release is executed and delivered with all periods for
revocation thereof expired (the “ Release Effective
Date ”), and continue for the remaining term
of
