EXHIBIT 10.45


 


AMENDMENT TO

CHANGE IN CONTROL SEVERANCE AGREEMENT


 


This AMENDMENT (this
“Amendment”) to the Change in Control Severance Agreement (the “CIC
Agreement”), dated as of                       
between Interline Brands, Inc., a Delaware corporation (the “Company”),
and                         
(“Executive”) is dated as of December          ,
2008.


 


WHEREAS, the Company and
Executive wish to amend the CIC 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.             Except as defined herein, capitalized terms used herein
shall have the meanings ascribed to such terms in the CIC Agreement.


 


2.             The definition of “Change in Control” is hereby amended
by adding the following language at the end thereof to read as follows:


 


“Moreover, in the event that
payments hereunder would otherwise be considered “deferred compensation”
subject to Section 409A, a Change in Control shall not be deemed to occur
unless the event giving rise to the Change in Control satisfies the definition
of a change in the ownership or effective control of a corporation, or a change
in the ownership of a substantial portion of the assets of a corporation
pursuant to Section 409A of the Code and any Treasury Regulations
promulgated thereunder.”


 


3.             The definition of Good Reason is amended by deleting
footnote 1.


 


4.             Section 3(c) of the CIC Agreement is hereby
amended by deleting the phrase “Sections 4(a)(i)(B), 4(a)(ii) and 4(b)”
contained therein and replacing it with “Sections 3(a)(i)(B), 3(a)(ii) and
3(b)”.  Section 3(c) of the CIC
Agreement is further amended by adding the following language at the end
thereof to read as follows:


 


“Executive shall execute and
deliver such release the Company within 60 days following the date of Executive’s
termination of employment. 
Notwithstanding anything to the contrary in this Agreement, in the event
that such payments hereunder would otherwise be considered “deferred
compensation” subject to Section 409A, any such payments shall not
commence until the 61st day following the Date of Termination.”


 


5.             A new Section 18 of the CIC Agreement is hereby added
to read as follows:


 

















 


“18.         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 18
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 3(b) 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 3(b) of
this Agreement shall be paid or provided as promptly as 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 expense
reimbursement made hereunder shall be exempt from Section 409A.  Notwithstanding the foregoing, if any expense
reimbursement made hereunder shall be determined to be “deferred 


 


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compensation” within the
meaning of Section 409A, then (i) the amount of the expense
reimbursement during one taxable year shall not affect the amount of the
expense reimbursement during any other taxable year, (ii) the expense
reimbursement shall be made on or before the last day of Executive’s taxable
year following the year in which the expense was incurred, and (iii) the
right to expense reimbursement hereunder shall not be subject to liquidation or
exchange for another benefit.


 


(v)           Any payment by the Company of any Gross-Up Payment
provided in Section 4 of this Agreement will be paid as provided therein
but in all events not later than the end of Executive’s taxable year next
following Executive’s taxable year in which Executive remits the related taxes,
and any other indemnification payment provided in Section 4 of this Agreement
shall be paid to Executive as provided therein but in all events on or before
the last day of Executive’s taxable year following the taxable year in which
the taxes that are the subject of the claim are remitted to the taxing
authority or where, as a result of such claim, no taxes are remitted, by the
end of Executive’s taxable year following Executive’s taxable year in which the
claim is completed (if an audit) or there is a final and nonappealable
settlement or other resolution of the claim.


 


(vi)          If the provisions of this Agreement would cause any amounts
payable under Executive’s employment agreement with the Company to be treated
as “deferred compensation” subject to Section 409A, any such payments that
are conditioned on Executive’s delivery of a release of claims under the terms
of the Employment Agreement shall not commence until the 61st day following
Executive’s termination of employment thereunder.


 


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


 


7.             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.


 


8.             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.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: Michael J.
  Grebe

  
	
   

  	
  Its: President and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


[Signature page to amendment to

CIC Agreement between the Company and Executive]


 


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