WITH REGARD TO ANY PROVISION HEREIN THAT
PROVIDES FOR REIMBURSEMENT OF EXPENSES OR IN-KIND BENEFITS, EXCEPT AS PERMITTED
BY CODE SECTION 409A, (I) THE RIGHT TO REIMBURSEMENT OR IN-KIND BENEFITS IS NOT
SUBJECT TO LIQUIDATION OR EXCHANGE FOR ANOTHER BENEFIT, (II) THE AMOUNT OF
EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND BENEFITS, PROVIDED DURING ANY
TAXABLE YEAR SHALL NOT AFFECT THE EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR
IN-KIND BENEFITS TO BE PROVIDED, IN ANY OTHER TAXABLE YEAR, PROVIDED THAT THE
FOREGOING CLAUSE (II) SHALL NOT BE VIOLATED WITH REGARD TO EXPENSES REIMBURSED
UNDER ANY ARRANGEMENT COVERED BY SECTION 105(B) OF THE CODE SOLELY BECAUSE SUCH
EXPENSES ARE SUBJECT TO A LIMIT RELATED TO THE PERIOD THE ARRANGEMENT IS IN
EFFECT.
(F)
IF UNDER THIS AGREEMENT, AN AMOUNT IS TO
BE PAID IN TWO OR MORE INSTALLMENTS, FOR PURPOSES OF CODE SECTION 409A, EACH
INSTALLMENT SHALL BE TREATED AS A SEPARATE PAYMENT.
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(G)
WHENEVER A PAYMENT UNDER THE AGREEMENT
SPECIFIES A PAYMENT PERIOD WITH REFERENCE TO A NUMBER OF DAYS, THE ACTUAL DATE
OF PAYMENT WITHIN THE SPECIFIED PERIOD SHALL BE WITHIN THE SOLE DISCRETION OF
THE COMPANY.
(H)
TO THE EXTENT THAT THIS AGREEMENT PROVIDES
FOR YOUR INDEMNIFICATION BY THE COMPANY AND/OR THE PAYMENT OR ADVANCEMENT OF
COSTS AND EXPENSES ASSOCIATED WITH INDEMNIFICATION, ANY SUCH AMOUNTS SHALL BE
PAID OR ADVANCED TO THE EXECUTIVE ONLY IN A MANNER AND TO THE EXTENT THAT SUCH
AMOUNTS ARE EXEMPT FROM THE APPLICATION OF CODE SECTION 409A IN ACCORDANCE WITH
THE PROVISIONS OF TREASURY REGULATION 1.409A-1(B)(10) OR THAT ARE PROVIDED IN
ACCORDANCE WITH CODE SECTION 409A.
26.
SARBANES-OXLEY.
THE EXECUTIVE HEREBY
ACKNOWLEDGES AND AGREES THAT HE IS SUBJECT TO SECTION 304 OF THE SARBANES-OXLEY
ACT OF 2002, AND THAT PURSUANT THERETO HE MAY UNDER CERTAIN CIRCUMSTANCES BE
OBLIGATED TO PAY BACK TO THE COMPANY CERTAIN AMOUNTS PREVIOUSLY RECEIVED BY HIM.
[END OF TEXT - SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
P&F INDUSTRIES, INC.
By:
/s/ Joseph A. Molino, Jr.
Name:
Joseph A. Molino, Jr.
Its:
VP and Chief Operating Officer
/s/ Richard A. Horowitz
Richard A. Horowitz
18
APPENDIX A
FORM OF RELEASE
AGREEMENT AND GENERAL RELEASE AND WAIVER, dated as of
(the "Agreement"), by and between RICHARD A.
HOROWITZ (the "Employee") and P&F INDUSTRIES, INC., a Delaware corporation (the
"Company").
The Employee and the Company mutually want to enter into this Agreement
concerning the Employee's separation from the Company.
Where appropriate in the
context of this Agreement, the term "Company" includes, the Company's past,
present and future subsidiaries, affiliates, divisions, parents, and any of its
or their respective predecessors, successors, assigns, assets, employee benefit
plans or funds and its or their past, present and future directors, officers,
fiduciaries, trustees, administrators, representatives, shareholders, agents,
employees, and independent contractors, whether acting on behalf of the Company
or in their individual capacities.
1.
The Employee acknowledges and agrees
that (a) his last date of employment with the Company