Exhibit
10.4


 


SECOND AMENDMENT TO EMPLOYMENT AGREEMENT


 


Second Amendment to
Employment Agreement (“Second Amendment”) effective December 30, 2008, between Virtual Radiologic Corporation, a Delaware
corporation (“Company”), and Richard Jennings (“Executive”).


 


Whereas, Company and Executive are parties to
an Employment Agreement dated April 2, 2007, as amended by a First
Amendment dated April 17, 2007 (together the “Original Agreement”);


 


Whereas, Company and Executive desire to
amend the Original Agreement to comply with the requirements of Section 409A
of the Internal Revenue Code.


 


Now therefore Company and Executive agree as
follows:


 


A.                                   Section 8(a) of
the Original Agreement is amended in its entirety to read as follows:


 


(a)                                  Disability.  Upon such termination, the Company shall pay
or provide Executive (i) any unpaid Base Salary through the date of
termination and any accrued vacation; (ii) any unpaid bonus earned with
respect to any fiscal year ending on or preceding the date of termination; (iii) reimbursement
for any unreimbursed expenses incurred through the date of termination; and (iv) all
other payments, benefits or fringe benefits to which Executive may be entitled
under the terms of any applicable compensation arrangement or benefit, equity
or fringe benefit plan or program or grant or this Agreement (collectively, “Accrued
Amounts”). Such benefits shall be paid 15 days following the date of
termination under this provision.


 


B                                        Section 8(d) of
the Original Agreement is amended in its entirety to read as follows:


 


(d)                                 Termination Without
Cause or for Good Reason.  If
Executive’s employment by the Company is terminated by the Company other than
for Cause (other than a termination for Disability) or by Executive for Good
Reason, the Company shall pay or provide Executive with (i) Accrued
Amounts; (ii) a pro-rata portion (determined by multiplying the amount
Executive would have received had employment continued through the end of the
performance year by a fraction, the numerator of which is the number of days
during the performance year of termination that Executive is employed by the
Company and the denominator of which is 365) of Executive’s Annual Bonus for
the performance year in which Executive’s termination occurs at the time that
annual bonuses are paid to other senior executives; provided that the Board
determines in good faith that the Company was on plan for Executive to earn
such bonus at the time of termination; (iii) continue his then current
Base Salary as if his employment continued for a period of twelve (12) months
from the date of termination, subject to the 


 

















 


mitigation provisions set forth below; and (iv) subject
to Executive’s continued co-payment of premiums, continued participation for
twelve (12) months in all health and welfare plans which cover Executive (and
eligible dependents) upon the same terms and conditions (except for the
requirements of Executive’s continued employment) in effect on the date of
termination.  If at any time after
Executive’s termination while the Company is obligated hereunder to make such
payments of Base Salary or continue such benefits, Executive receives
compensation for providing services as an employee or as an independent
contractor from any person or entity, then Executive shall immediately notify
the Company of such event and the Company’s obligation to continue to make such
payments to Executive shall be reduced by the gross amount of any such payments
and the obligation to continue to provide benefits shall cease at such time as
Executive is eligible for health insurance coverage by any successor employer
or person or entity, prompt notice of which Executive shall furnish to the
Company.  Executive shall use good faith
and reasonable efforts to find and secure new employment after any such termination.  To the extent such coverage cannot be
provided under the Company’s health or welfare plans without jeopardizing the
tax status of such plans, for underwriting reasons or because of the tax impact
on Executive, the Company shall pay Executive an amount equal to the amount the
Company would have paid for such benefits on behalf of Executive if the
benefits were provided to him as an employee. 
The continuation of health benefits under this subsection shall reduce
and count against Executive’s rights under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”).  All benefits provided under Section 8(d)(iii) may
be paid to the Employee within thirty (30) days of the termination date once
all necessary applicable releases have been signed by the Employee and returned
to the Company.  Notwithstanding anything to the contrary herein, if Executive is a “specified
employee,” as defined in Section 409A(a)(2)(B)(i) of the Internal
Revenue Code as of the date of any termination, any benefits due under this Section 4(d) otherwise  payable within six months following
termination shall be provided in one lump sum six months from the date of
termination.  However, any payment or portion thereof which is subject to
an exemption for separation pay to specified employees as provided under Section 409A
and the relevant Treasury Regulations, or is subject to any other exemption
provided under Section 409A and the relevant Treasury Regulations allowing
for payment to a specified employee prior to the date that is six (6) months
after the date of separation from service, may be paid to Employee
within thirty (30) days of the termination date once all applicable releases
have been signed by the Executive and returned to the Company.


 


C.                                     The
Original Agreement, as amended by this First Amendment, shall continue in full
force and effect according to its terms.


 


(the
remainder of this page is intentionally blank)


 

















 


IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to be effective as of the date first written above.


 


	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  Virtual
  Radiologic Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rob Kill

  
	
   

  	
   

  	
  Name:   Rob
  Kill

  
	
   

  	
   

  	
  Its:   President
  and Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  Richard
  Jennings

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Jennings