**Exhibit 10.34**

 

**AMENDED ANDRESTATED EMPLOYMENT AGREEMENT**

 

THIS AMENDED AND RESTATEDEMPLOYMENT AGREEMENT (the “Agreement”) is effective as of May 12,2004 by and between Interline Brands, Inc., a New Jersey corporation(f/k/a Wilmar Industries, Inc.) (the “Company”) and Thomas J.Tossavainen (the “Executive”).

 

WHEREAS, the Executive andthe Company entered into an Agreement of Confidentiality and Covenant Not toCompete, dated as of July 11, 2001(the “Original Agreement”);

 

WHEREAS, the Companyconsiders it essential to its best interests and the best interests of itsstockholders to provide for the continued employment of the Executive by theCompany in view of the Company’s anticipated hiring of a new Chief FinancialOfficer (the “CFO”); and

 

WHEREAS, the Executive iswilling to accept and continue his employment on the terms hereinafter setforth in this Agreement;

 

NOW, THEREFORE, inconsideration of the premises and mutual covenants herein and for other goodand valuable consideration and intending to be legally bound hereby, theparties agree as follows:

 

1.                                  Term of Employment. The Executive’s term of employment with theCompany under this Agreement shall begin on the effective date hereof, andunless sooner terminated as hereafter provided, shall continue for two (2) yearsfrom such effective date (the “Initial Term”); provided that theterm of employment shall automatically be extended for successive one-yearperiods (the Initial Term plus any additional extension terms shall be the “EmploymentTerm”), unless either party gives ninety (90) days prior written notice ofsuch party’s intention not to renew the Employment Term.

 

2.                                  Position.

 

(a)                                  The Executive shall serve as Vice Presidentof Finance & Treasurer of the Company. In such position, the Executiveshall have such duties and authority as are customarily associated with suchposition and agrees to perform such duties and functions as shall from time totime be assigned or delegated to him by the CFO of the Company or his designee.

 

(b)                                 During the Employment Term, the Executivewill devote substantially all of his business time and best efforts to theperformance of his duties hereunder and will not engage in any other business,profession or occupation for compensation or otherwise which would conflictwith the rendition of such services, either directly or indirectly, without theprior written consent of the Company.

 

----

 

3.                                  Base Salary. During the Employment Term, the Company shall pay the Executive anannual base salary (the “Base Salary”) at the annual rate of $149,268,payable in regular installments in accordance with the Company’s usual payrollpractices. Such base salary may, at the sole discretion of the Company, beupwardly adjusted.

 

4.                                  Bonus. With respect to each calendar year during the Employment Term, theExecutive shall be eligible to earn an annual bonus award of up to fortypercent (40%) of the Base Salary (the “Maximum Bonus”), based upon bonusplans to be established and determined by the Company from time to time.

 

5.                                  Employee Benefits and Perquisites. During the Employment Term, the Executiveshall be eligible to participate in the Company’s employee benefit plans(including, without limitation, its health insurance and short term and longterm disability insurance plans) on the same basis as those benefits aregenerally made available to other executives of the Company. All of thebenefits described in this Section 5 shall hereafter be referred to collectivelyas the “Benefits”.

 

6.                                  Business Expenses. During the Employment Term, reasonablebusiness expenses incurred by Executive in the performance of his dutieshereunder shall be reimbursed by the Company in accordance with the Company’spolicies on expense reimbursement in effect from time to time.

 

7.                                  Housing Allowance. During the Employment Term, as long as the Executiveshall maintain his primary residence in the Jacksonville, Florida metropolitanarea, the Company shall pay the Executive a housing allowance at an annual rateof $24,000, payable in regular installments in accordance with the Company’susual payroll practices.

 

8.                                  Termination. Notwithstanding any other provision of this Agreement:

 

(a)                           For Cause by the Company. The Employment Term and the Executive’semployment hereunder may be terminated by the Company for “Cause.” For purposesof this Agreement, “Cause” shall mean (i) the Executive’s grossneglect of, or willful and continued failure to substantially perform, hisduties hereunder (other than as a result of total or partial incapacity due tophysical or mental illness), (ii) a willful act by the Executive against theinterests of the Company or which causes or is intended to cause harm to theCompany or its stockholders, (iii) the Executive’s conviction, or plea ofno contest or guilty, to a felony under the laws of the United States or anystate thereof or of a lesser offense involving dishonesty, the theft of Companyproperty or moral turpitude, or (iv) a material breach of the Agreement bythe Executive which is not cured by the Executive within twenty (20) days (wherethe breach is curable) following written notice to the Executive by the Companyof the nature of the breach. Upon termination of the Executive’s employment forCause pursuant to this Section 8(a), the Executive shall be paid (i) anyaccrued and unpaid Base Salary, Benefits and Housing Allowance through the dateof termination and shall have no additional rights to any compensation or any otherbenefits under this Agreement or otherwise.

 

(b)                          Disability or Death. The Employment Term and the Executive’s employmenthereunder shall terminate upon his death or if the Executive is unable for an

 

2

----

 

aggregate of six (6) monthsin any twelve (12) consecutive month period to perform his duties due to theExecutive’s physical or mental incapacity, as reasonably determined by theCompany (such incapacity is hereinafter referred to as “Disability”).Upon termination of the Executive’s employment hereunder for either Disabilityor death, the Executive or his estate (as the case may be) shall be entitled toreceive (i) any accrued and unpaid Base Salary, Benefits and HousingAllowance and (ii) a bonus for the calendar year in which terminationoccurs, equal to the bonus which the Executive would have been entitled to ifhe had remained employed by the Company at the end of such calendar year,multiplied by a fraction, the numerator of which is the number of days in suchcalendar year preceding the date of death or termination of employment and thedenominator of which is 365 (a “Pro Rata Bonus”), payable when bonusesfor such calendar year are paid to other employees of the Company. Upontermination of the Executive’s employment due to Disability or death pursuantto this Section 8(b), the Executive shall have no additional rights to anycompensation or any other benefits under this Agreement. All other benefits, ifany, due the Executive following his termination for Disability or death shallbe determined in accordance with the plans, policies and practices of the Company.

 

(c)                          Without Cause by the Company. The Employment Term and the Executive’semployment hereunder may be terminated by the Company without Cause. If the Executive’semployment is terminated by the Company without Cause (other than by reason of Disabilityor death) the Executive shall be entitled to receive (i) any accrued andunpaid Base Salary, Benefits and Housing Allowance, (ii) SeverancePayments, as defined below, for the Severance Period, as defined below, (iii) aPro Rata Bonus, payable when bonuses for the applicable calendar year are paidto other employees of the Company, and (iv) the Relocation Allowance. Upontermination of Executive’s employment by the Company without Cause pursuant tothis Section 8(c), Executive shall have no additional rights to anycompensation or any other benefits under this Agreement. All other benefits, ifany, due Executive following Executive’s termination of employment by theCompany without Cause shall be determined in accordance with the plans,policies and practices of the Company.

 

(d)                         Voluntary Termination by Executive. The Executive shall provide the Companyninety (60) days’ advance written notice in the event the Executive terminateshis employment other than for Good Reason (as hereinafter defined); providedthat the Company may, in its sole discretion, terminate the Executive’semployment with the Company prior to the expiration of the ninety-day noticeperiod. In such event and upon the expiration of such sixty-day period (or suchshorter time as the Company in its sole discretion may determine), the Executive’semployment under this Agreement shall immediately and automatically terminate, andthe Executive shall be entitled to receive (i) any accrued and unpaid BaseSalary and Housing Allowance, (ii) the Relocation Allowance, and (iii) ifthe Executive has terminated his employment during the Initial Term (but nototherwise), Severance Payments for the shorter of the periods of (x) one yearafter the date of termination or (y) the remainder of the Initial Term; providedthat notwithstanding anything to the contrary in this Section 8(d), theExecutive shall be entitled to Severance Payments set forth in the foregoingclause (iii) only if (x) the effective date of the Executive’s terminationis not less than six (6) months after the new CFO’s commencement ofemployment with the Company and (y) the Executive has given sixty (60) daysadvance written notice of his termination (and, if requested by the Company,has continued to fulfill his duties during such ninety-day period.)

 

3

----

 

(e)                          Termination for Good Reason. The Executive may terminate his employmenthereunder for “Good Reason” at any time during the Employment Term. For purposesof the Agreement, “Good Reason” shall mean (i) a material breach ofthe terms of this Agreement by the Company, (ii) the Company requiring theExecutive to move his primary place of employment more than thirty-five (35)miles from the then current place of employment, if such move materiallyincreases his commute, or (iii) a material diminution of the Executive’s responsibilitiesas such responsibilities are constituted after hiring of the new CFO, and whereany diminution of duties resulting from the hiring of the new CFO and theconsequential expansion of the CFO’s duties shall not constitute a materialdiminution, provided that any of the foregoing is not cured by theCompany within twenty (20) days following receipt of written notice by theExecutive to the Company of the specific nature of the breach. No terminationfor Good Reason shall be permitted unless the Company shall have first receivedwritten notice from the Executive describing the basis of such termination forGood Reason. A termination of the Executive’s employment for Good Reasonpursuant to this Section 8(e) shall be treated for purposes of thisAgreement as a termination by the Company without Cause and the provisions of Section 8(c) relatingto the payment of compensation and benefits shall apply.

 

(f)                            Benefits/Release. In addition to any amounts which may be payablefollowing a termination of employment pursuant to one of the paragraphs of thisSection 8, the Executive or his beneficiaries shall be entitled to receiveany benefits that may be provided for under the terms of an employee benefitplan in which the Executive is participating at the time of termination.Notwithstanding any other provision of this Agreement to the contrary, the Executiveacknowledges and agrees that any and all payments, other than the payment ofany accrued and unpaid Base Salary, Benefits and Housing Allowance, to whichthe Executive is entitled under this Section 8 are conditioned upon andsubject to the Executive’s execution of a general waiver and release, in suchform as may be prepared by the Company’s attorneys, of all claims and issuesarising under the Employment Agreement, except for such matters covered by provisionsof this Agreement which expressly survive the termination of this Agreement.

 

(g)                         Except as provided in this Section 8, theCompany shall have no further obligation or liability under this Agreementfollowing a termination of employment by the Executive.

 

(h)                         Notice of Termination. Any purported termination of employment bythe Company or by the Executive shall be communicated by written notice oftermination to the other party hereto in accordance with Section 13(h) hereof.

 

(i)                              Definitions. As used herein, “Severance Payments” means payments made equalto the sum of the Executive’s Base Salary and Housing Allowance, payable inregular installments in accordance with the Company’s usual payroll practices. “SeverancePeriod” means (i) in the case of a termination of the Executive’semployment by the Company without Cause during the Initial Term, a period oftime commencing on the date of termination and ending on the earlier of (x) January 1,2007 and (y) the date two (2) years after the date of termination; or (ii) inall other cases where Severance Payments are to be made, a period of timecommencing on the date of termination of the Executive’s employment and endingone year after such date. “Relocation Allowance” means an amount in cashsufficient to

 

4

----

 

reimburse the Executive forhis reasonable, out-of-pocket expenses in moving out of the Jacksonville,Florida metropolitan area within six (6) months following termination ofthe Executive’s employment with the Company (but only to the extent suchexpenses are submitted in writing to the Company for approval and are nototherwise reimbursed), provided that such amount shall not exceed$75,000 in the aggregate.

 

9.                                 Non-Competition.

 

(a)                                  During the Employment Term and, for a periodending on the expiration of one year following the termination of the Executive’semployment (or such longer period as the Company is paying any SeverancePayments) (the “Restricted Period”), the Executive will not directly orindirectly, (i) engage in any business for the Executive’s own accountthat competes with the business of the Company, (ii) enter the employ of,or render any services to, any person engaged in any business that competeswith the business of the Company, (iii) acquire a financial interest in, orotherwise become actively involved with, any person engaged in any businessthat competes with the business of the Company, directly or indirectly, as anindividual, partner, shareholder, officer, director, principal, agent, trusteeor consultant, or (iv) interfere with business relationships (whetherformed before or after the date of this Agreement) between the Company or anyof its affiliates that are engaged in a business similar to the business of theCompany (the “Company Affiliates”) and customers or suppliers of theCompany or the Company Affiliates.

 

(b)                                 Notwithstanding anything to the contrary inthis Agreement, the Executive may directly or indirectly own, solely as apassive investment, securities of any person engaged in the business of theCompany which are publicly traded on a national or regional stock exchange oron the over-the-counter market if the Executive (i) is not a controllingperson of, or a member of a group which controls, such person and (ii) doesnot, directly or indirectly, own one percent (1%) or more of any class ofsecurities of such person.

 

(c)                                  During the Restricted Period, and for anadditional one year after the end of the Restricted Period, the Executive willnot, directly or indirectly, (i) without the written consent of theCompany, solicit or encourage any employee of the Company or the CompanyAffiliates to leave the employment of the Company or the Company Affiliates, or(ii) without the written consent of the Company (which shall not beunreasonably withheld), hire any such employee who has left the employment ofthe Company or the Company Affiliates (other than as a result of thetermination of such employment by the Company or the Company Affiliates) withinone year after the termination of such employee’s employment with the Companyor the Company Affiliates.

 

(d)                                 During the Restricted Period, the Executivewill not, directly or indirectly, solicit or encourage to cease to work withthe Company or the Company Affiliates any consultant then under contract withthe Company or the Company Affiliates.

 

(e)                                  It is expressly understood and agreed thatalthough the Executive and the Company consider the restrictions contained inthis Section 9 to be reasonable, if a final judicial determination is madeby a court of competent jurisdiction that the time or territory or any otherrestriction contained in this Agreement is an unenforceable restriction againstthe

 

5

----

 

(a)                                  Governing Law. This Agreement shall be governed by andconstrued in accordance with the laws of the State of Florida without regard toits conflicts of law doctrine.

 

(b)                                 Entire Agreement/Amendments. This Agreement contains the entireunderstanding of the parties with respect to the employment of the Executive bythe Company. There are no restrictions, agreements, promises, warranties,covenants or undertakings between the parties with respect to the subjectmatter herein other than those expressly set forth herein. This Agreement maynot be altered, modified, or amended except by written instrument signed by theparties hereto.

 

(c)                                  No Waiver. The failure of a party to insist upon strict adherence to any term ofthis Agreement on any occasion shall not be considered a waiver of such party’srights or deprive such party of the right thereafter to insist upon strictadherence to that term or any other term of this Agreement.

 

(d)                                 Severability. In the event that any one or more of theprovisions of this Agreement shall be or become invalid, illegal orunenforceable in any respect, the validity, legality and enforceability of theremaining provisions of this Agreement shall not be affected thereby.

 

(e)                                  Assignment. This Agreement shall not be assignable by the Executive. ThisAgreement may be assigned by the Company to a company which is a successor ininterest to substantially all of the business operations of the Company or tothe financial institution(s) providing the Company’s senior credit facility.Such assignment shall become effective when the Company notifies the Executiveof such assignment or at such later date as may be specified in such notice. Uponsuch assignment, the rights and obligations of the Company hereunder shallbecome the rights and obligations of such successor company, providedthat any assignee expressly assumes the obligations, rights and privileges ofthis Agreement.

 

(f)                                    No Mitigation. The Executive shall not be required tomitigate the amount of any payment provided for pursuant to this Agreement byseeking other employment and, to the extent that the Executive obtains orundertakes other employment, the payment will not be reduced by the earnings ofthe Executive from the other employment.

 

(g)                                 Successors; Binding Agreement. This Agreement shall inure to the benefitof and be binding upon personal or legal representatives, executors,administrators, successors, heirs, distributes, devises and legatees.

 

(h)                                 Notice. For the purpose of this Agreement, notices and all othercommunications provided for in the Agreement shall be in writing and shall bedeemed to have been duly given when delivered or mailed by United Statesregistered mail, return receipt requested, postage prepaid, addressed, in thecase of the Executive, to the Executive’s address on file with the Company; allnotices to the Company shall be directed to the attention of the President orto such other address as either party may have furnished to the other inwriting in accordance herewith, except that notice of change of address shallbe effective only upon receipt.

 

6

----

 

IN WITNESS WHEREOF, theparties hereto have duly executed this Agreement as of the day and year firstabove written.

 

 
|   | /s/ Thomas J. Tossavainen |                 |
|--------|---------------------------|----------------------|
|   | Thomas J. Tossavainen     |
|   |                      |
|   |                      |
|   | INTERLINE BRANDS, INC.    |
|   |                      |
|   |                      |
|   | By:                       | /s/ Michael J. Grebe |   |
|   |                      | Name:                | Michael J. Grebe |
|   |                      | Title:               | President & CEO |
|        |                           |                      |  |  |  |

 

7

----