EXHIBIT 10.40


 


AMENDMENT TO

EMPLOYMENT AGREEMENT


 


This AMENDMENT (this
“Amendment”) to the Employment Agreement (the “Employment Agreement”),
dated as of January 7, 2004, between Interline Brands, Inc., a New Jersey
corporation (the “Company”), and Pamela L. Maxwell (“Executive”),
as heretofore amended, is dated as of December 31, 2008.


 


WHEREAS, the Company and
Executive wish to amend the Employment Agreement as provided herein to reflect
certain changes required to comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”).


 


NOW, THEREFORE, in consideration
of the mutual agreements and understandings set forth herein, the parties
hereby agree as follows:


 


1.                                       Defined
Terms.  Except as defined herein,
capitalized terms used herein shall have the meanings ascribed to such terms in
the Employment Agreement.


 


2.                                       Amendment
to Section 4 of the Employment Agreement.  Section 4 of the Employment Agreement is
hereby amended by adding the following language at the end thereof to read as
follows:


 


“Payments of annual bonus that
are earned, if any, shall be made as soon as practicable following the
determination by the Company that such amounts have been earned, but in any
event on or prior to March 15 of the year following the year such bonus is
earned.”


 


3.                                       Amendment
to Section 6 of the Employment Agreement.  Section 6 of the Employment Agreement is
hereby amended by adding the following language at the end thereof to read as
follows:


 


“To the extent that any
reimbursements pursuant to this Agreement are taxable to Executive, any such
reimbursement payment due to Executive shall be paid to Executive as promptly
as practicable, and in all events on or before the last day of Executive’s
taxable year following the taxable year in which the related expense was
incurred.  Any such reimbursements are
not subject to liquidation or exchange for another benefit and the amount of
such benefits and reimbursements that Executive receives in one taxable year
shall not affect the amount of such benefits or reimbursements that Executive
receives in any other taxable year.”


 


4.                                       Amendment
to Section 7 of the Employment Agreement.  Sections 7(b) and 7(c) of the
Employment Agreement are each hereby amended to provide that any payments of a
Pro Rata Bonus shall be payable at such time as bonuses for the relevant year
would have otherwise been paid had Executive’s employment not terminated.


 


5.                                       Further
Amendment to Section 7 of the Employment Agreement.  Section 7(f) of the Employment
Agreement is hereby amended by adding the following at the end thereof to read
as follows:


 

















 


“The Executive shall execute
and deliver the waiver and release described in this Section 7(f) to
the Company within 30 days following the date of Executive’s termination of
employment.”


 


6.                                       Amendment
to Section 12 of the Employment Agreement.  A new Section 12(k) of the
Employment Agreement is hereby added to read as follows:


 


“(k)                            Section 409A.


 


(i)                                     For purposes of this Agreement, “Section 409A”
means Section 409A of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder (and such other Treasury or
Internal Revenue Service guidance) as in effect from time to time.   The parties intend that any amounts payable
hereunder that could constitute “deferred compensation” within the meaning of Section 409A
will comply with Section 409A, and this Agreement shall be administered,
interpreted and construed in a manner that does not result in the imposition of
additional taxes, penalties or interest under Section 409A.  In this regard, the provisions of this Section 12(k) shall
only apply if, and to the extent, required to avoid the imputation of any tax,
penalty or interest pursuant to Section 409A.   Notwithstanding the foregoing, the Company
does not guarantee any particular tax effect, and Executive shall be solely
responsible and liable for the satisfaction of all taxes, penalties and
interest that may be imposed on or for the account of Executive in connection
with this Agreement (including any taxes, penalties and interest under Section 409A),
and neither the Company nor any affiliate shall have any obligation to
indemnify or otherwise hold Executive (or any beneficiary) harmless from any or
all of such taxes, penalties or interest. 
With respect to the time of payments of any amounts under this Agreement
that are “deferred compensation” subject to Section 409A, references in
this Agreement to “termination of employment” (and substantially similar
phrases) shall mean “separation from service” within the meaning of Section 409A.  For purposes of Section 409A, each of
the payments that may be made under this Agreement are designated as separate
payments.


 


(ii)  Notwithstanding
anything in this Agreement to the contrary, if Executive is a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code
and is not “disabled” within the meaning of Section 409A(a)(2)(C) of
the Code, no payments under this Agreement that are “deferred compensation”
subject to Section 409A shall be made to Executive prior to the date that
is six months after the date of Executive’s “separation from service” (as
defined in Section 409A) or, if earlier, Executive’s date of death.  Following any applicable six month delay, all
such delayed payments will be paid in a single lump sum on the earliest date
permitted under Section 409A that is also a business day.


 


(iii)                               In addition, for a period of six months
following the date of separation from service, to the extent that the Company
reasonably determines that any of the benefit plan coverages are described in Section 7(c)(iii) are
“deferred compensation” and may not be exempt from U.S. federal income tax,
Executive shall in advance pay to the Company an amount equal to the stated
taxable cost of such coverages for six months (and at the end of such six-month
period, Executive shall be entitled to receive from the Company a reimbursement
of the amounts paid by Executive for such coverages), and any payments,
benefits or reimbursements paid or provided to Executive under Section 7(c)(iii) of
this Agreement shall be paid or provided as promptly as 


 


2

















 


practicable, and in all
events not later than the last day of the third taxable year following the taxable
year in which the Executive’s separation from service occurs.


 


(iv)                              For the avoidance of doubt, it is intended
that any indemnification payment or expense reimbursement made hereunder shall
be exempt from Section 409A.   
Notwithstanding the foregoing, if any indemnification payment or expense
reimbursement made hereunder shall be determined to be “deferred compensation”
within the meaning of Section 409A, then (i) the amount of the
indemnification payment or expense reimbursement during one taxable year shall
not affect the amount of the indemnification payments or expense reimbursement
during any other taxable year, (ii) the indemnification payments or
expense reimbursement shall be made on or before the last day of the Executive’s
taxable year following the year in which the expense was incurred, and (iii) the
right to indemnification payments or expense reimbursement hereunder shall not
be subject to liquidation or exchange for another benefit.


 


7.                                       Continuing
Effect of Employment Agreement. 
Except as expressly modified hereby, the provisions of the Employment
Agreement are and shall remain in full force and effect.


 


8.                                       Governing
Law.  This Amendment shall be
governed by, construed under, and interpreted in accordance with the laws of
the State of Florida applicable to agreements made and to be wholly performed
within that State, without regard to its conflict of laws provisions or any
conflict of laws provisions of any other jurisdiction which would cause the
application of any law other than that of the State of Florida.


 


9.                                       Counterparts.  This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.


 


[Signature page follows]


 


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IN WITNESS WHEREOF,
the parties have executed and delivered this Amendment on the date first
written above.


 


 


	
   

  	
  INTERLINE BRANDS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael J. Grebe

  
	
   

  	
  By: Michael J.
  Grebe

  
	
   

  	
  Its: President and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Pamela L. Maxwell

  
	
   

  	
  Pamela L. Maxwell

  



 


 


[Signature page to amendment to

Employment Agreement between the Company and Pamela L. Maxwell]


 


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