Exhibit 10.4
ALLIANCE IMAGING,
INC.
AMENDMENT OF EMPLOYMENT
AGREEMENT
THIS AMENDMENT OF EMPLOYMENT
AGREEMENT (the “Amendment”) is entered into as of April
16, 2007 (the “Effective Date”), between Howard K.
Aihara (“Executive”) and Alliance Imaging, Inc., a
Delaware corporation (the “Company”).
RECITALS
WHEREAS, on December 1, 2005, the
Company and the Executive entered into an Employment Agreement (the
“Employment Agreement”) and a related Letter Agreement
(the “Letter Agreement”); and
WHEREAS, the parties wish to amend
certain provisions of such agreements regarding the benefits to be
provided upon the termination of the Executive’s employment
with the Company pursuant to the terms and conditions set forth
below.
AGREEMENT
NOW THEREFORE, in consideration of
the foregoing and the mutual agreements contained herein and
intending to be legally bound hereby, the parties hereby agree as
follows effective as of the Effective Date. Except as
otherwise defined herein, capitalized terms shall have the meanings
assigned to them in the Employment Agreement or the Letter
Agreement, as the case may be.
1.
Noncompetition . The second sentence of paragraph 1 of
the Letter Agreement shall be amended to read in its entirety as
follows:
“In consideration of the
Company granting you options under the Option Plan, executing and
delivering the Option Agreements and making the payments described
in Paragraph 5 below, you agree that no Competition Event (as
defined below) shall occur prior to the date you cease to receive
payments under Paragraph 5.”
2.
Nonsolicitation . Paragraph 4 of the Letter Agreement
shall be amended to read in its entirety as follows:
“In partial consideration of
the Company’s covenant to make the payments described in
Paragraph 5, you agree that you will not, prior to the date you
cease to receive payments under paragraph 5, solicit or make any
other contact with, directly or indirectly, any employee of the
Company on the Date of Termination (or any person who was employed
by the Company at any time during the three-month period prior to
the Date of Termination) with respect to any employment, services
or other business relationship.”
3.
Salary Continuation Period . Paragraphs 5 and 6 of the
Letter Agreement shall be amended and replaced in their entirety as
follows:
“5.
In partial consideration of your covenants contained herein, the
Company shall, following the Date of Termination, pay you severance
pay equal to two (2) years of your annual base salary as of the
Date of Termination (such time period shall be referred to herein
as the “Salary Continuation Period”), payable on a
bi-weekly basis. Following the Date of Termination, the
Company shall also pay you an amount equal to 100% of your current
annual target incentive bonus as of the Date of Termination
(“Bonus”) for each year (or portion thereof) of the
Salary Continuation Period. The Bonus payment shall be
payable by the Company on a bi-weekly basis during the Salary
Continuation Period. Notwithstanding the foregoing, effective
two (2) years after the Effective Date of this Amendment, the
Salary Continuation Period shall be reduced to eighteen (18)
months, and the amount of severance and benefits payable pursuant
to this Amendment and the Employment Agreement shall be adjusted
accordingly. In addition, the Company shall not be obligated
to make any payments under this paragraph to you if (x) you fail to
cure a breach of this Agreement within fifteen days after receipt
of notice of such breach from the Company, (y) your employment with
the Company is terminated by reason of your death or disability or
for Cause or by reason of your resignation other than for Good
Reason, or (z) you fail to sign (and not revoke) a release of any
and all claims that you have or may have against the Company and
its past and then current officers, directors and employees
relating to or arising out of your employment (or termination of
employment) with the Company (under this Agreement or otherwise),
in a form prescribed by the Company.”
4.
Term . Paragraph 1(b) of the Employment Agreement
shall be amended in its entirety to read as follows:
“The term of the
Executive’s employment under this Agreement shall end on the
second anniversary of the Effective Date of this Amendment, subject
to the extension of such term as hereinafter provided and subject
to earlier termination as provided in Paragraph 8. The
expiration of the term of this Agreement shall be extended
automatically by an additional three months as of the last day of
each quarterly period following the end of the term described in
the preceding sentence unless either party desires to modify or
terminate this Agreement and notifies the other party of its desire
to modify or terminate this Agreement at least 30 days prior to any
such quarterly renewal date. The period of employment as
provided in this Paragraph 1(b) is sometimes referred to herein as
the “Term”.”
5.
Other Severance Benefits . Paragraphs 9(b)(ii) and
(iii) of the Employment Agreement shall be amended in their
entirety and replaced with the following:
“(ii)
During t
