exv10w9






Exhibit 10.9




First Amendment

to the Nortek, Inc. Second Amended and Restated

Change in Control Severance Benefit Plan for Key Employees




     WHEREAS, Nortek, Inc. (the “Company”) adopted the Nortek, Inc. Second Amended and Restated
Change in Control Severance Benefit Plan for Key Employees (the “Plan”) effective August 24, 2004;



     WHEREAS, the Plan may be amended by the Company at any time; and



     WHEREAS, the Company wishes to amend the Plan to comply with the final regulations under
Section 409A of the Internal Revenue Code of 1986, as amended;



     NOW, THEREFORE, the Company hereby amends the Plan as follows, effective, except where
otherwise provided, January 1, 2008:




	1.	 	The second paragraph of Section 6 is deleted in its entirety and replaced with the following:
	 
	 	 	“In the event of such a termination, Employee shall continue for a period of 24 months after
termination to be covered at the expense of Employer by the same or equivalent hospital,
medical, accident, disability, and life insurance coverages as he was covered immediately
prior to such termination.”
	 
	2.	 	The following new Section 6A is inserted following Section 6, to read in its entirey as
follows:






     “6A. Specified Employees.




     (a) If at the time of Separation from Service an Employee is a Specified Employee, any
and all amounts payable hereunder to such Employee that constitute deferred compensation
subject to Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) as
determined by the Company in its sole discretion, and that would (but for this sentence) be
payable within six months following such Separation from Service, shall instead be paid in
the form of a single lump sum payment on the date that follows the date of such Separation
from Service by six (6) months and one day, together with interest at the “short-term
applicable federal rate” determined on a semi-annual basis, prescribed by the Internal
Revenue Service under Section 1274(d) of the Internal Revenue Code (or any successor
provision). Payments, if any, due following six (6) months following Separation from
Service shall continue to be paid at the time and in the form otherwise provided hereunder.



 









 






     (b) The following definitions shall apply for purposes of this Plan:




     (i) “Specified Employee” means an individual who is determined by the Company
to be a specified employee as defined in subsection (a)(2)(B)(i) of Section 409A.
Nortek, Inc. may, but need not, elect in writing, subject to the applicable
limitations under Section 409A, any of the special elective rules prescribed in
Section 1.409A-1(i) of the Treasury Regulations for purposes of determining
“specified employee” status. Any such written election shall be deemed part of this
Plan.




     (ii) “Separation from Service” means a separation from service within the
meaning of Treasury regulations §1.409A-1(h). For this purpose, references in this
Plan to “termination of employment” shall mean a Separation from Service.




     (c) Separate Payment Election. For purposes of Section 409A, an
Employee’s right to receive any installment payment upon Separation from Service
pursuant to this Plan, offer letter or other similar agreement shall be treated as a
right to receive a series of separate and distinct payments.”




	3.	 	The following Sections 11 through 13, inclusive are added to the Plan, to read
in their entirety as follows:





     “11. Administration. The Plan shall be administered by the Company acting
through its duly authorized officers and their delegates (the “Administrator”). The
Administrator shall have full discretionary authority to construe the Plan, to establish
procedures, and to take all such other actions as are necessary or appropriate to administer
the Policy.



     12. Employment Not Guaranteed. Nothing in this Plan shall be construed as
giving any person the right to be retained in the service of the Company as an employee or
independent contractor.



     13. Miscellaneous. Neither the Administrator nor the Company, nor any officer
or other representative of the Company, nor any other person, shall have any liability to
any employee for any taxes or increased taxes, or related interest or penalties, incurred by
reason of the failure of any payment to comply with any applicable requirements of Section
409A.”



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     IN WITNESS WHEREOF, Nortek, Inc. has caused this instrument of amendment to be executed by
its duly authorized officer this 29th day of December, 2008.



	 	 	 	 	 
	 	Nortek, Incorporated

 	 
	 	By:  	/s/ Edward J. Cooney
 	 
	 	 	Authorized Officer