Exhibit 10.5



 






EXHIBIT 10.5




AMENDMENT #1

TO

AGREEMENT RE: CHANGE IN CONTROL




     THIS AMENDMENT #1 TO AGREEMENT RE: CHANGE IN CONTROL this “Amendment”) is made and entered
into as of the 23rd day of February, 2006 (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 (the “Agreement”). Capitalized terms in this Amendment and not
otherwise defined herein shall have the meanings given them in the Agreement.



     B. The Company and Executive wish to amend and modify certain provisions in the Agreement as
provided herein and effective as of the Effective Date hereof, while leaving unchanged all other
provisions of the Agreement.



Agreement




          1. Effect of a Change in Control. Section 4(a) of the Agreement is hereby deleted
and is replaced in its entirety with the following:





(a) In the event of a Change in Control, all of Executive ‘s unvested and
outstanding stock options, restricted stock or other equity-based awards shall
immediately and automatically become fully vested and (to the extent relevant)
exercisable. Any stock options and stock appreciation rights shall remain
exercisable for their remaining terms (but in no event later than the last day prior
to the day that any extension would cause such options or rights to
become subject to
Section 409A of the Code).



          2. Severance Payment. Section 6(b) of the Agreement is hereby deleted in its
entirety and replaced with “[Reserved]”.




          3. Section 409A Compliance. In recognition that Section 409A of the Code may
prohibit the payment of certain payments or benefits under the Agreement in connection with the
Executive’s termination of employment earlier than six (6) months following the Executive’s
termination of employment, a new Section 20 is added to the Agreement as follows:





20. Compliance with Section 409A. Notwithstanding any provision of this
Agreement to the contrary, if, at the time of Executive’s termination of employment
with the Company, he 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
Executive pursuant to this Agreement would constitute deferred compensation subject
to Section 409A, no such payment



 









 







or benefit will be provided under this Agreement
until the earliest of (A) the date which is six (6) months after his “separation
from service” for any reason, other than death or “disability” (as such terms are
used in Section 409A(a)(2) of the Code), (B) the date of his death or “disability”
(as such term is used in Section 409A(a)(2)(C) of the Code) or (C) the effective
date of a “change in the ownership or effective control” of the Company (as such
term is used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this
Section 20 shall only apply to the extent required to avoid Executive’s incurrence
of any penalty tax or interest under Section 409A of the Code or any regulations or
Treasury guidance promulgated thereunder. In addition, if any provision of this
Agreement would cause Executive 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 in this Agreement, all terms and
provisions of the Agreement remain unchanged and in full force and effect.




     IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as of the Effective
Date.



	 	 	 	 	 	 	 	 	 	 	 
	I-FLOW CORPORATION	 	 	 	DONALD M. EARHART	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ James J. Dal Porto
	 	 	 	By:
	 	 /s/ Donald M. Earhart	 	 
	 

	 	 

   James J. Dal Porto
	 	 	 	 	 	 

   Donald M. Earhart
	 	 
	 

	 	   Executive VP, COO	 	 	 	 	 	 	 	 






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