Exhibit 10.5


 


FIRST AMENDMENT TO EMPLOYMENT AGREEMENT


 


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


 


Whereas, Company and Executive are parties to
an Employment Agreement dated April 14, 2008 (“Original Agreement”); and


 


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

  
	
   

  	
   

  
	
   

  	
  Leonard Purkis

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Leonard Purkis