Exhibit 10.36


CHANGE
IN CONTROL


AGREEMENT


 


AGREEMENT made and
entered into as of this 31st day of July, 2007 by and between MSC
INDUSTRIAL DIRECT CO., INC., a New York corporation (the “Corporation”), and
Charles Bonomo having an address at                                                            ,
(the “Associate”).


 




	
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WHEREAS, the Associate has been employed by the Corporation in a senior
Associate capacity and desires to remain in the employ of the Corporation in
such capacity; and


WHEREAS, the Corporation desires to induce the Associate to so remain
in the employ of the Corporation.


NOW, THEREFORE, the parties hereto hereby agree as follows:


FIRST:  Inducement Payments.


A.            If, within two (2) years after a
Change in Control, the Associate’s “Circumstances of Employment” (as
hereinafter defined) shall have changed, the Associate may terminate his
employment by written notice to the Corporation given no later than ninety (90)
days following such change in the Associate’s Circumstances of Employment.  In the event of such termination by the
Associate of his employment or if, within two (2) years after a Change in
Control, the Corporation shall terminate the Associate’s employment other than
for “Cause” (as hereinafter defined), the Corporation shall pay to the
Associate, subject to the provisions of paragraph F of this Article FIRST and
compliance by Associate with Article THIRD hereof, in cash, the “Special
Severance Payment” (as hereinafter defined) as provided in Section E below.


 


 

















B.            Change in Control shall be deemed to
occur upon:


(a)           a change in ownership of the
Corporation, which shall occur on the date that any one person, or more than
one person acting as a “Group” (as defined under Section 409A of the Code (as
defined hereunder)), other than Mitchell Jacobson or Marjorie Gershwind or a
member of the Jacobson or Gershwind families or any trust established
principally for members of the Jacobson or Gershwind families or an executor,
administrator or personal representative of an estate of a member of the
Jacobson or Gershwind families and/or their respective affiliates, acquires
ownership of stock of the Corporation that, together with stock held by such
person or Group, constitutes more than 50% of the total fair market value or
total voting power of the stock of the Corporation; provided, however, that, if
any one person or more than one person acting as a Group, is considered to own
more than 50% of the total fair market value or total voting power of the stock
of the Corporation, the acquisition of additional stock by the same person or
persons is not considered to cause a change in the ownership of the
Corporation;


(b)           a change in the effective control of
the Corporation, which shall occur on the date that (1) any one person, or more
than one person acting as a Group, other than Mitchell Jacobson or Marjorie
Gershwind or a member of the Jacobson or Gershwind families or any trust
established principally for members of the Jacobson or Gershwind families or an
executor, administrator or personal representative of an estate of a member of
the Jacobson or Gershwind families and/or their respective affiliates, acquires
(or has acquired during the 12-month 


 


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period
ending on the date of the most recent acquisition by such person or persons)
ownership of stock of the Corporation possessing 50% or more of the total
voting power of the stock of the Corporation; or (2) a majority of the members
of the Board is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
Board prior to the date of the appointment or election; provided, however,
that, if one person, or more than one person acting as a Group, is considered
to effectively control the Corporation, the acquisition of additional control
of the Corporation by the same person or persons is not considered a change in
the effective control of the Corporation; or


(c)           a change in the ownership of a
substantial portion of the Corporation’s assets, which shall occur on the date
that any one person, or more than one person acting as a Group, acquires (or
has acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Corporation that have a
total Gross Fair Market Value (as defined hereunder) equal to or more than 80%
of the total Gross Fair Market Value of all of the assets of the Corporation
immediately prior to such acquisition or acquisitions; provided, however, that,
a transfer of assets by the Corporation is not treated as a change in the
ownership of such assets if the assets are transferred to (1) a shareholder of
the Corporation (immediately before the asset transfer) in exchange for or with
respect to its stock; (2) an entity, 50% or more of the total value or voting
power of which is owned, directly or indirectly, by the Corporation; (3) a
person, or more than one person acting as a Group, that owns, 


 


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directly
or indirectly, 50% or more of the total value or voting power of all the
outstanding stock of the Corporation; or (4) an entity, at least 50% of the
total value or voting power of which is owned, directly or indirectly, by a
person described in Article FIRST B(c)(3).


For purposes of this Article FIRST B, “Gross Fair Market Value” means
the value of the assets of the Corporation, or the value of the assets being
disposed of, determined without regard to any liabilities associated with such
assets.  For purposes of this Article
FIRST B, stock ownership is determined under Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”).


C.            The Associate’s “Circumstances of
Employment” shall have changed if there shall have occurred any of the
following events: (a) a material reduction or change in the Associate’s
employment duties or reporting responsibilities; (b) a reduction in the annual
base salary made available by the Corporation to the Associate from the annual
base salary in effect immediately prior to a Change in Control; or (c) a
material diminution in the Associate’s status, working conditions or other
economic benefits from those in effect immediately prior to a Change in
Control.


D.            “Cause” shall mean (i) the commission
by the Associate of any act or omission that would constitute a felony or any
crime of moral turpitude under Federal law or the law of the state or foreign
law in which such action occurred, (ii) dishonesty, disloyalty, fraud,
embezzlement, theft, disclosure of trade secrets or confidential information or
other acts or omissions that result in a breach of fiduciary or other material
duty to the Corporation and/or a subsidiary; or (iii) continued reporting to
work or working under the influence of alcohol, an 


 


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illegal drug, an
intoxicant or a controlled substance which renders the Associate incapable of
performing his or her material duties to the satisfaction of the Corporation
and/or its subsidiaries.


E.             The “Special Severance Payment”
shall mean: (X) payment equal to the sum of (i) the product of one and one-half
(1.5) and the annual base salary in effect immediately prior to a change in the
Associate’s Circumstances of Employment or the termination other than for Cause
of the Associate’s employment by the Corporation, as the case may be, and (ii)
the product of one and one half (1.5) and the targeted bonus for the Associate
in effect immediately prior to a change in Associate Circumstances of
Employment or termination other than for Cause, as the case may be, such
payment to be made in equal installments in accordance with the Corporation’s
regular payroll policies (but not less frequently than biweekly) for a period
of eighteen months, with the first such installment being made on the fifth (5th)
business day following the six-month anniversary of Associate’s termination of
employment; (Y) payment of a pro rata portion of the Associate’s targeted bonus
in effect immediately prior to the date such change in Associate’s
Circumstances of Employment or termination of employment other than for Cause
occurs (the “In Year Bonus”), calculated as the product of (a) the In
Year Bonus multiplied by (b) a fraction the numerator of which is the
number of whole months elapsed in the fiscal year up to the date such change in
Associate’s Circumstances of Employment or termination occurs, and the
denominator of which is twelve (12), such payment to be made on the fifth (5th)
business day following the six (6) months’ anniversary of termination of
employment; and (Z) for the two (2) year period or the remaining term of the
automobile lease at issue, whichever is less following Associate’s date of
termination of employment (other than termination for Cause), the Corporation shall,
at Associate’s option, (a) pay Associate a monthly automobile allowance in
amounts equal to those in effect immediately prior to such termination, if
applicable, or (b) continue to make the 


 


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monthly lease payments
under the automobile lease in effect for the benefit of Associate immediately
prior to such termination, provided that if any payment (or portion thereof)
otherwise due under this clause (Z) during the first six (6) months following
the Associate’s termination of employment is not exempt from the application of
section 409A of the Code under applicable Treasury regulations, the amount
subject to section 409A that would otherwise be paid during such first six
months shall be held (without adjustment for earnings and losses) and paid on
the fifth (5th) business day following the six-month anniversary of
such termination date.


F.             As a condition to receiving the
Special Severance Payment, Associate shall execute the General Release in the
form attached as Exhibit A hereto and the Associate Confidentiality,
Non-Solicitation and Non-Competition Agreement referred to in Article THIRD
hereof and attached as Exhibit B hereto and shall return such executed General
Release and Agreement no later than 60 days following the Associate’s
termination of employment, and shall at all times be in compliance therewith.


G.            For purposes of this Agreement, “affiliate”
shall have the meaning ascribed thereto under the Securities Act of 1933.


H.            For purposes of this Agreement, “termination
of employment” means cessation of full or part time employment with the Company
and any of its subsidiaries.


SECOND:  Tax Indemnification.


A.            In the event that, as a result of
any of the payments or other consideration provided for or contemplated by
Article FIRST of this Agreement or otherwise, a tax (an “Excise Tax”) shall be
imposed upon the Associate or threatened to be imposed upon the Associate by 


 


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virtue of the application
of Section 4999(a) of the Code, as now in effect or as the same may at any time
or from time to time be amended, or the application of any similar provisions
of state or local tax law, the Corporation shall indemnify and hold the
Associate harmless from and against all such taxes (including additions to tax,
penalties and interest and additional Excise Taxes, whether applicable to
payments pursuant to the provisions of this Agreement or otherwise) incurred
by, or imposed upon, the Associate and all expenses arising therefrom.


B.            Each indemnity payment to be made by
the Corporation pursuant to Part A of this Article SECOND shall be increased by
the amount of all Federal, state and local tax liabilities (including additions
to tax, payroll taxes, penalties and interest and Excise Tax) incurred by, or
imposed upon, the Associate so that the effect of receiving all such indemnity
payments will be that the Associate shall be held harmless on an after-tax
basis from the amount of all Excise Taxes imposed upon payments made to the
Associate by the Corporation pursuant to this Agreement, it being the intent of
the parties that the Associate shall not incur any out-of-pocket costs or
expenses of any kind or nature on account of the Excise Tax and the receipt of
the indemnity payments to be made by the Corporation pursuant hereto.


C.            Each indemnity payment to be made to
the Associate pursuant to this Article SECOND shall be payable within fifteen
(15) business days of delivery of a written request (a “Request”) for such
payment to the Corporation (which request may be made prior to the time the
Associate is required to file a tax return showing a liability for an Excise
Tax or other tax) but, in any event, such Request shall be made at least 15
days prior to (i) the end of the Associate’s taxable year following the
Associate’s taxable year in which an Excise Tax is remitted to a taxing
authority, or (ii) in the event that no Excise Tax is remitted, the end of the
Associate’s taxable year following the Associate’s taxable year in which an
audit is completed or there is a 


 


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final and non-appealable
settlement or other resolution of the litigation.  A Request shall set forth the amount of the
indemnity payment due to the Associate and the manner in which such amount was
calculated, and the Associate shall thereafter submit such other evidence of
the indemnity to which the Associate is entitled as the Corporation shall
reasonably request.  All such information
shall, if the Corporation shall request, be set forth in a statement signed by
a nationally recognized accounting firm or a partner thereof and the
Corporation shall pay all fees and expenses of such accounting firm incurred in
the preparation thereof.


D.            The Associate agrees to notify the
Corporation (a) within fifteen (15) business days of being informed by a
representative of the Internal Revenue Service (the “Service”) or any state or
local taxing authority that the Service or such authority intends to assert
that an Excise Tax is or may be payable, (b) within fifteen (15) business days
of the Associate’s receipt of a revenue agent’s report (or similar document)
notifying the Associate that an Excise Tax may be imposed and (c) within
fifteen (15) business days of the Associate’s receipt of a Notice of Deficiency
under Section 6212 of the Code or similar provision under state or local law
which is based in whole or in part upon an Excise Tax and/or a payment made to
the Associate pursuant to this Article SECOND.


E.             After receiving any of the
aforementioned notices, and subject to the Associate’s right to control any and
all administrative and judicial proceedings with respect to, or arising out of,
the examination or the Associate’s tax returns, except as such proceedings
relate to an Excise Tax, the Corporation shall have the right (a) to examine
all records, files and other information and documentation in the Associate’s
possession or under the Associate’s control, (b) to be present and to
participate, to the extent desired, in all administrative and judicial
proceedings with respect to an Excise Tax, including the right to appear and
act for the Associate 


 


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at such proceedings in
resisting any contentions made by the Service or a state or local taxing
authority with respect to an Excise Tax and to file any and all written
responses in connection therewith, (c) to forego any and all administrative
appeals, proceedings, hearings and conferences with the Service or a state or
local taxing authority with respect to an Excise Tax on the Associate’s behalf,
and (d) to pay any tax increase on the Associate’s behalf and to control all
administrative and judicial proceedings with respect to a claim for refund from
the Service or state or local taxing authority with respect to such tax
increase, provided that all such payments shall be paid (i) by the end of the
Associate’s taxable year following the Associate’s taxable year in which such
tax increase is remitted to a taxing authority, or (ii) in the event that no
such tax increase is remitted, by the end of the Associate’s taxable year
following the Associate’s taxable year in which an audit is completed or there
is a final and non-appealable settlement or other resolution of the litigation.


F.             The Corporation shall be solely
responsible for all reasonable legal and accounting or other expenses (whether
of the Associate’s representative or the representative of the Corporation)
incurred in connection with any such administrative or judicial proceedings insofar
as they relate to an Excise Tax or other tax increases resulting therefrom and
the Associate agrees to execute and file, or cause to be executed and filed,
such instruments and documents, including, without limitation, waivers,
consents and Powers of Attorneys, as the Corporation shall reasonably deem
necessary or desirable in order to enable it to exercise the rights granted to
it pursuant to part E of this Article SECOND, provided that all such payments
shall be paid (i) by the end of the Associate’s taxable year following the
Associate’s taxable year in which such tax increase is remitted to a taxing
authority, or (ii) in the event that no such tax increase is remitted, by the
end of the Associate’s taxable year following the Associate’s taxable 


 


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year in which an audit is
completed or there is a final and non-appealable settlement or other resolution
of the litigation.


G.            The liability of the Corporation
shall not be affected by the Associate’s failure to give any notice provided
for in this Article SECOND unless such failure materially prejudices the
Corporation’s ability to effectively resist any contentions made by the Service
or a state or local taxing authority.  The
Associate may not compromise or settle a claim which he is indemnified against
hereunder without the consent of the Corporation, unless the Associate can
establish by a preponderance of the evidence that the decision of the
Corporation was not made in the good faith belief that a materially more
favorable result could be obtained by continuing to defend against the claim
(or prosecute a claim for refund).


THIRD:  Associate Confidentiality,
Non-Solicitation and Non-Competition Agreement.  In consideration of the Associate’s employment
and continued employment, the payment of Associate’s compensation by the
Corporation, the Corporation entrusting Associate with Confidential Information
(as defined below), and the benefits provided hereunder, including without
limitation the Special Severance Payment, the parties have entered into the
Associate Confidentiality, Non-Solicitation and Non-Competition Agreement
attached as Exhibit B hereto, which is hereby incorporated by reference herein
and make a part hereof as if set forth in full herein.


FOURTH:  Continued Medical Coverage.  If Associate’s employment is terminated in
either of the circumstances described in Article FIRST, Part A hereof, in the
event Associate timely elects under the provisions of COBRA to continue his
group health plan coverage that was in effect prior to the date of the
termination of Associate’s employment with the Corporation, Associate will be
entitled to continuation of such coverage, at the Corporation’s 


 


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expense, for a period of
eighteen (18) months from the date of termination, provided that Associate
continues to be eligible for COBRA coverage.


FIFTH:  Outplacement.  If Associate’s employment is terminated in
either of the circumstances described in Article FIRST, Part A hereof,
Associate shall be eligible for outplacement services, at the Corporation’s
expense and with a service selected by the Corporation in its reasonable
discretion, for up to six (6) months from the date of the termination of
Associate’s employment with the Corporation.


SIXTH:  At Will Employment.  Nothing in this Agreement shall confer upon
the Associate the right to remain in the employ of the Corporation, it being
understood and agreed that (a) the Associate is an employee at will and serves
at the pleasure of the Corporation at such compensation as the Corporation
shall determine from time to time and (b) the Corporation shall have the right
to terminate the Associate’s employment at any time, with or without Cause.  In the event of any such termination prior to
the occurrence of a Change in Control, no amount shall be payable by the
Corporation to the Associate pursuant to Article FIRST hereof.


SEVENTH:  Costs of Enforcement.  In the event that the Associate incurs any
costs or expenses, including attorney’s fees, in the enforcement of his rights
under this Agreement then, unless the Corporation is wholly successful in
defending against the enforcement of such rights, the Corporation shall pay to
the Associate all such costs and expenses sixty (60) days following a final
decision.


EIGHTH:  Term.  The initial term of this Agreement shall be
for three (3) years from the date hereof, and this Agreement shall
automatically renew for successive three (3) year terms unless terminated by
the Corporation, in its sole discretion, by delivering to Associate 


 


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written notice thereof
provided to Associate at least 18 months prior to the end of the initial term
or such successive terms, as applicable.


NINTH:  Notices.  All notices hereunder shall be in writing and
shall be sent by registered or certified mail, return receipt requested, if
intended for the Corporation shall be addressed to it, attention of its
President, 75 Maxess Road, Melville, New York 11747 or at such other address of
which the Corporation shall have given notice to the Associate in the manner
herein provided; and if intended for the Associate, shall be mailed to him at
the address of the Associate first set forth above or at such other address of
which the Associate shall have given notice to the Corporation in the manner
herein provided.


TENTH:  Entire Agreement. This Agreement
constitutes the entire understanding between the parties with respect to the
matters referred to herein, and no waiver of or modification to the terms
hereof shall be valid unless in writing signed by the party to be charged and
only to the extent therein set forth.  All
prior and contemporaneous agreements and understandings with respect to the
subject matter of this Agreement are hereby terminated and superseded by this
Agreement.


ELEVENTH:  Withholding.  The Corporation shall be entitled to withhold
from amounts payable to the Associate hereunder such amounts as may be required
by applicable law.


TWELFTH:  Binding Nature.  This Agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, administrators,
executors, personal representatives, successors and assigns.


THIRTEENTH:  Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the law of the State of New York.  Notwithstanding 


 


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the foregoing, it is the
intent of the parties hereto that the Agreement, as amended herewith, conform
in form and operation with the requirements of section 409A of the Code to the
extent subject to section 409A, and that the Agreement as amended herewith be
interpreted to the extent possible to so conform.


[signature page to
follow]


 


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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.




	
   

  	
  MSC INDUSTRIAL DIRECT
  CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DAVID SANDLER

  
	
   

  	
   

  	
  Name:

  	
  David Sandler

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ CHARLES BONOMO

  
	
   

  	
   

  	
  Charles Bonomo

  






 


 


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Exhibit A


RELEASE 


[TEMPLATE]


                WHEREAS, ________________ (the “Associate”) was a
party to an Agreement dated as of __________, 20__ (the “Agreement”) by and
between the Associate and MSC INDUSTRIAL DIRECT CO., INC., a New York corporation (the “Corporation”),
pursuant to which the Associate served as the ____________________ of the
Corporation, and the employment of the Associate with the Corporation has been
terminated; and


                WHEREAS, it is a condition to the Corporation’s
obligations to make the severance payments and benefits available to the
Associate pursuant to the Agreement that the Associate execute and deliver this
Release to the Corporation.


                NOW, THEREFORE, in consideration of the receipt by
the Associate of the benefits under the Agreement, which constitute a material
inducement to enter into this Release, the Associate intending to be legally
bound hereby agrees as follows:


                Subject to the next succeeding paragraph, effective
upon the expiration of the 7-day revocation period following execution hereof
as provided below, the Associate irrevocably and unconditionally releases the
Corporation and its owners, stockholders, predecessors, successors, assigns,
affiliates, control persons, agents, directors, officers, employees,
representatives, divisions and subdivisions (collectively, the “Related Persons”)
from any and all causes of action, charges, complaints, liabilities,
obligations, promises, agreements, controversies and claims (a) arising out of
the Associate’s employment with the Corporation and the conclusion thereof,
including, without limitation, any federal, state, local or other statutes,
orders, laws, 

















 


ordinances, regulations
or the like that relate to the employment relationship and/or specifically that
prohibit discrimination based upon age, race, religion, sex, national origin,
disability, sexual orientation or any other unlawful bases, including, without
limitation, as amended, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Civil
Rights Acts of 1866 and 1871, the Americans With Disabilities Act of 1990, the
New York City and State Human Rights Laws, and any applicable rules and
regulations promulgated pursuant to or concerning any of the foregoing statutes;
(b) for tort, tortious or harassing conduct, infliction of emotional distress,
interference with contract, fraud, libel or slander; and (c) for breach of
contract or for damages, including, without limitation, punitive or
compensatory damages or for attorneys’ fees, expenses, costs, salary, severance
pay, vacation, injunctive or equitable relief, whether, known or unknown,
suspected or unsuspected, foreseen or unforeseen, matured or unmatured, which,
from the beginning of the world up to and including the date hereof, exists,
have existed, or may arise, which the Associate, or any of his heirs,
executors, administrators, successors and assigns ever had, now has or at any
time hereafter may have, own or hold against the Corporation and/or any Related
Person.


                Notwithstanding anything contained herein to the
contrary, the Associate is not releasing the Corporation from any of the
Corporation’s obligations (a) under the Agreement, (b) to provide the Associate
with insurance coverage defense and/or indemnification as an officer or
director of the Corporation, if applicable to Associate, to the extent
generally made available at the date of termination to the Corporation’s
officers and directors in respect of facts and circumstances existing or
arising on or prior to the date hereof, or (c) in respect of the Associate’s
rights under the Corporation’s Associate Stock Purchase Plan, 1995 Stock Option



 


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Plan, 1998 Stock Option
Plan, 2001 Stock Option Plan, 1995 Restricted Stock Plan or the 2005 Omnibus
Equity Plan, as applicable.


                The Corporation has advised the Associate in writing
to consult with an attorney of his choosing prior to the signing of this
Release and the Associate hereby represents to the Corporation that he has in
fact consulted with such an attorney prior to the execution of this
Release.  The Associate acknowledges that
he has had at least twenty-one days to consider the waiver of his rights under
the ADEA. Upon execution of this Release, the Associate shall have seven
additional days from such date of execution to revoke his consent to the waiver
of his rights under the ADEA.  If no such
revocation occurs, the Associate’s waiver of rights under the ADEA shall become
effective seven days from the date the Associate executes this Release.


                IN WITNESS WHEREOF, the undersigned has executed this
Release on the ___ day of ______________, 20__.


 


	
   

  	
   

  	
                                     

  



 


 


 


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Exhibit B


 


 




ASSOCIATE CONFIDENTIALITY, NON-SOLICITATION


AND NON-COMPETITION AGREEMENT





ASSOCIATE
CONFIDENTIALITY,  NON-SOLICITATION  AND  NON-
COMPETITION  AGREEMENT  dated
as of July 31, 2007,  between
MSC  Industrial Direct  Co.,  Inc.,  on  behalf  of  itself  and  its  subsidiaries
(collectively, “Employer” or “Corporation”),
and Charles Bonomo (“Associate”).


In consideration of Associate’s employment and
continued employment, the payment of Associate’s compensation by Employer, and
Employer entrusting Associate with Confidential Information (as defined below),
and the benefits provided in the Agreement between Employer and Associate dated
as of even date herewith (the “Agreement”), it being acknowledged and agreed by
Associate that his receipt of such benefits is expressly conditioned on his
continued compliance with the terms hereof,  the parties
have entered into this Associate Confidentiality, Non-Solicitation and
Non-Competition Agreement.


1.                           Confidentiality.


A.           During  the  term  of  Associate’s  employment  with  Employer,  Associate
will  not use  or  disclose  to  any  individual
or entity  any  Confidential  Information  (as
defined  below)  except  (i)  in  the  performance  of  Associate’s  duties  for  Employer,
(ii) as  authorized  in  writing  by  Employer,
or  (iii)  as  required  by  law  or  legal
process,  provided  that,  prior  written
notice  of  such  required  disclosure  is  provided
to Employer and, provided further
that all  reasonable  efforts  to  preserve  the confidentiality
of such information shall be made.


B.             As  used  in  this  Agreement,  “Confidential Information”  shall  mean  information
that  (i)  is  used  or  potentially  useful  in  Employer’s  business,
(ii)  Employer  treats as  proprietary,  private  or  confidential, and  (iii)  is  not  generally  known  to  the public.  “Confidential  Information”
includes,  without  limitation,  information
relating  to  Employer’s  products
or services,  processing,  manufacturing,
marketing,  selling,  customer  lists,  call  lists,  customer  data,  memoranda,  notes, records,  technical  data,  sketches,
plans,  drawings,  chemical  formulae,
trade secrets,  composition
of  products,  research
and  development  data,  sources  of
supply  and  material,  operating
and  cost  data,  financial  information,  personal information  and  information  contained
in  manuals  or  memoranda.  “Confidential
Information”  also  includes  proprietary  and/or  confidential  information  of Employer’s  customers,  suppliers  and  trading  partners
who  may  share  such information  with  Employer  pursuant
to  a  confidentiality  agreement  or  otherwise.
The  Associate  agrees  to  treat  all  such  customer,  supplier  or  trading  partner
information  as  “Confidential  Information”  hereunder.  The  foregoing  restrictions on  the  use  or  disclosure  of  confidential  information  shall


 

















 


continue  after
Associate’s  employment  terminates  for  any  reason  for  so  long  as  the  information is
not  generally  known  to  the  public.


2.                           Non-competition.


A.           Associate  recognizes  that  the  Corporation’s  relationship  and  goodwill
with  its customers have been established at substantial
cost and effort by the Corporation.


B.             Therefore,  associate  shall  not  enter  into  competition  (as  defined  below)  with Employer
during the term of Associate’s employment
with Employer, and


C.             for  a  period  of two (2)
years  following  cessation
of  Associate’s  employment  with
the  Corporation  for  any  reason,
Associate  will  not,  in  any  capacity,  accept employment  with  the  employer  with  whom  Associate
was  employed  immediately preceding  the  commencement  of  Associate’s  employment  with  the  Corporation,  nor will  Associate,  in  any  capacity,  accept  employment  with  the  following  business entities,  including  any  parent  or  subsidiary  entities
or  other  affiliated
organizations:  W.W.  Grainger,
Inc.;  J&L  Industrial  Supply;
Fastenal  Corporation; and The
Home Depot, Inc.


3.                           Non-Solicitation.


A.           Associate  recognizes  that  the  Corporation’s  relationship  and  goodwill
with  its customers have been established at substantial
cost and effort by the Corporation.


B.             Therefore,  while  employed
by  the  Corporation,  and  for  an  additional  period  of  two (2)  years  after  the  termination  of  employment,  Associate  shall  not  in  any  capacity employ  or  solicit  for  employment,  or  recommend  that  another  person
employ  or solicit  for  employment,  any  person  who  is  then,  or  was  at  any  time  during  the  six (6)  months  immediately  preceding  the  termination  of  Associate’s  employment,  an
Associate,  sales  representative  or  agent of  Employer  or  any  present
or  future subsidiary or affiliate of
Employer.


C.             Further,
Associate  agrees  that  while  employed
by  the  Corporation,  and  for  a  period of  two  (2)  years  after  his/her  employment with
the  Corporation  ends,  s/he  will  not,  on behalf
of  himself/herself,  or  any  other  person,
firm  or  corporation,  solicit
any  of the  Corporation’s  or  its  Affiliate’s  customers  with  whom  s/he  has  had  contact  while working  for  the  Corporation;  nor  will  Associate  in  any  way,  directly  or  indirectly,
for  himself/herself,  or  any  other  person,  firm,  corporation  or  entity,  divert,  or  take away
any  customers  of  the  Corporation  or  its  Affiliates  with  whom  Associate  has had
contact.  For  purposes
of  this  paragraph, the term “contact”
shall mean engaging  in  any  communication,  whether
written  or  oral,  with  the  customer  or  a
representative  of  the  customer,  or  obtaining
any  information  with  respect
to  such customer or customer representative.


 


 


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4.                           Employment
At-Will.  Associate acknowledges that
his or her employment by Employer is not for any specified period of time and
that it can be terminated by either Associate or Employer at any time for any
lawful reason. This is an “employment at will.”


5.                           Termination
of  Employment.  In  the  event  of  termination  of  employment  by  either  party, this  Agreement  will  remain  in  effect. Upon  termination,  Associate  will  immediately deliver  to  Employer
all  property  belonging to  Employer  then  in  the  Associate’s
possession  or  control,  including  all  Documents  (as  defined  herein)  embodying
Confidential  Information.
As  used  herein,  “Documents”
shall mean originals or copies of
files,  memoranda,  correspondence,  notes,  manuals,
photographs,  slides,  overheads,  audio or video tapes, cassettes, or disks, and records maintained
on computer or other electronic media.


6.                           Notice  to  Future  Employers.  For  the  period  of  two (2) years
immediately following the end
of Associate’s  employment  with  the  Corporation,  Associate will inform each new employer, in writing,  prior  to  accepting  employment,  of  the  existence  and  details  of  this  Agreement
and  will  provide  that  employer  with  a  copy  of  this  Agreement.  Associate
will  send  a copy  of  each  such  writing
to  the Corporation  at  the  time  the  Associate  informs  each  new  employer
of the Agreement.


7.                           Remedies.  Associate  acknowledges  that  this  Agreement,  its  terms  and  his/her compliance  is  necessary  to  protect  the  Corporation’s  confidential  and  proprietary
information,  its  business  and  its  goodwill;
and that  a  breach  of  any  of  Associate’s promises  contained  in  this  Agreement  will  irreparably  and  continually  damage  the Corporation  to  an  extent
that  money  damages may  not  be  adequate.
For  these  reasons, Associate  agrees  that  in  the  event
of  a  breach  or  threatened  breach
by  the  Associate  of this  Agreement,  the  Corporation  shall  be  entitled  to  a  temporary  restraining  order  and preliminary  injunction  restraining  Associate  from  such  breach.  Nothing  contained  in  this
provision  shall  be  construed  as  prohibiting  the  Corporation  from  pursuing
any  other remedies
available  for  such  breach  or  threatened  breach  or  any  other  breach  of  this
Agreement.  If  Associate  violates
this  Agreement,  then  the  duration
of  the  restrictions contained  in  paragraphs  2  and  3  shall  be extended  for  an  amount  of  time  equal  to  the
period of time during which
Associate was in violation of the Agreement.


8.                           Entire  Agreement.
 This  Agreement  embodies  the  entire  agreement  and  understanding
between  the  Parties  with  regard  to  the  subject  matter  of  this  Agreement,  is  binding  upon and
inures  to  the  benefit  of  the  Parties,  and  it  supersedes  any  and  all  prior  agreements  or understandings between the Corporation
and Associate.


9.                           Modification.  This
Agreement  may  be  modified
or  amended  only  by  an  instrument  in writing executed by the Parties
hereto, or in accordance with paragraph 15 herein.


10.                     Governing  Law  and  Venue. 
This  Agreement  shall  be  construed  and  enforced  in accordance  with  and  governed
by  the  laws  of  the  State  of  New  York,  and  may  be
enforced in any court of competent
jurisdiction.


11.                     Waiver. 
If  in  one  or  more  instances  either  party  fails
to insist that the other party perform any  of  this  Agreement’s  terms,  this  failure  shall  not  be  construed  as  a  waiver  by  the  party


 


 


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of  any  past,  present,
or  future  right  granted  under  this  Agreement;  the  obligations  of  both
Parties under this Agreement shall
continue in full force and effect.


12.                     Assignment. This  Agreement  may  not  be  assigned  by  Associate.  The  Corporation  shall have  the  right  to  assign  its  rights  and  obligations  hereunder  without
the  consent  of  the
Associate.


13.                     Arbitration.  Except
as  otherwise  provided
in  this  Agreement,  any  controversy  or  claim
arising  out  of  Associate’s  employment  with  Employer
or  the  termination  thereof, including  without  limitation
any  claim  related  to  this  Agreement  or  the  breach  thereof shall  be  resolved  by  binding  arbitration  in  accordance  with  the  rules  then  in  effect  of  the
American  Arbitration  Association,  at  the  office  of  the  American
Arbitration  Association
nearest  to  where  the  Associate
performed the  Associate’s  principal
duties  for  the Employer.
Nothing  in  this  paragraph  shall  prevent  the  parties  from  seeking  injunctive relief  from  the  courts  pending
arbitration.  Each  party
shall  be  permitted  to  engage  in arbitral  discovery  in  the  form  of  document  production,  information  requests, interrogatories,  depositions  and  subpoenas.  The  parties  shall  share  equally
the  fee  of  the arbitration
panel.


To  the  extent  that  an  arbitrator  or  court  shall  find  that  any  dispute  between
the  parties, including  any  claim  made  under  or  relating  to  this  Agreement,  is  not  subject  to arbitration,  such  claim  shall  be  decided  by the
courts  of  the  State  and  the  County,
in which  this  agreement  was  executed,  in  a  proceeding  held  before  a  Judge  of  the  Trial Court  of  the  State  and  County  in  which  this  agreement  was  executed
or  in  the  United States  District
Court  in  and  for  the  District  Court  of  covering  the  County  in  which  this agreement  was  executed.
Any  trial  of  such  a  claim  shall  be  heard  by  the  Judge  of  such Court,  sitting  without  a  jury  at  a  bench  trial,  to  ensure
more  rapid  adjudication  of  that claim and application of existing law.


14.                     Attorneys’  Fees.
 If  any  party  to  this  Agreement  breaches  any  of  this  Agreement’s  terms,
then  that  party  shall  pay  to  the  non-defaulting  party  all  of  the  non-defaulting  party’s  costs
and  expenses,  including  reasonable  attorneys’ fees,  incurred  by  that  party  in  enforcing
this Agreement.


15.                     Severability. 
If  any  one  or  more  of  the  provisions  contained  in  this  Agreement  is  held
illegal  or  unenforceable  by  an  arbitrator  or  court
and  cannot  be  modified
to  be enforceable  (which  the  parties
expressly  authorize  such  court,  arbitrator,  or  other  forum to do), no other provisions shall be
affected by this holding.


16.                     Acknowledgment. 
I have read this agreement,
have had an opportunity to ask Employer’s representatives  questions  about  it,  and  understand  that  my  signing  this  agreement  is  a condition of employment.


17.                     Section  Headings.  Section  headings
are  used  herein  for  convenience  of  reference  only and shall not affect the meaning of any provision of this Agreement.


 


 


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THUS, the parties knowingly and voluntarily execute this Agreement as of the dates set forth below.


 


 


	
  MSC INDUSTRIAL DIRECT CO., INC.:

  	
  ASSOCIATE:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Eileen McGuire

  	
   

  	
  By:

  	
  /s/ Charles Bonomo

  
	
   

  	
   

  
	
  Title:

  	
  Sr. V.P. Human
  Resources

  	
   

  	
  Printed Name:

  	
  Charles Bonomo

  
	
   

  	
   

  
	
  Date:

  	
  7/31/07

  	
   

  	
  Date:

  	
  7/31/07