Exhibit 10.4


 


AMENDED AND
RESTATED AGREEMENT made and entered into as of this 27th day of December, 2005 by
and between MSC INDUSTRIAL DIRECT CO., INC., a New York corporation (the “Corporation”),
and SHELLEY BOXER having an address at                                                                                                                                                                                        ,
(the “Executive”).


 


W  I  T  N  E
S  S  E  T  H:


 


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


 


WHEREAS, the Executive
and the Corporation are parties to an Agreement dated January 8, 1999 (the
“Prior Agreement”), providing the Executive with certain benefits on and in
connection with a “Change in Control” as defined therein; and


 


WHEREAS, due to certain
recent legislation known as the American Job Creations Act of 2004 and certain
regulations promulgated or proposed thereunder, including regulations under Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”), regarding deferred
compensation plans and other arrangements (the “Regulations”), the benefits
under the Prior Agreement are in certain respects not in compliance with the
Regulations, and such lack of compliance could have a material adverse affect
on the tax treatment of such benefits to the Executive; and


 


WHEREAS, the Corporation
desires to induce the Executive to remain in the employ of the Corporation and
the Executive desires the Corporation to effect certain changes to the Prior
Agreement so that such benefits are in compliance with the Regulations.


 


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


 





















 


FIRST:  Inducement
Payments:


 


A.           Subject to the
provisions of paragraph G of this Article FIRST, if a “Change in Control”
(as hereinafter defined) shall occur, the Corporation shall pay to the
Executive, in cash, the amount of $800,000, which amount shall be due and
payable thirty (30) days after the occurrence of a Change in Control.


 


B.             If, within five (5) years
after a Change in Control, the Executive’s “Circumstances of Employment” (as
hereinafter defined) shall have changed, the Executive may terminate his
employment by written notice to the Corporation given no later than ninety (90)
days following such change in the Executive’s Circumstances of Employment.  In the event of such termination by the
Executive of his employment or if, within five (5) years after a Change in
Control, the Corporation shall terminate the Executive’s employment other than
for “Cause” (as hereinafter defined), the Corporation shall pay to the
Executive, subject to the provisions of paragraph G of this Article FIRST,
on the fifth (5th) business day following the six months’
anniversary of the date of such termination (or the date of Executive’s death,
if earlier), in cash, the “Special Severance Payment” (as hereinafter defined).


 


C.             A 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), 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


 


2





















 


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 familiesand/or their respective affiliates,
acquires (or has acquired during the 12-month 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


 


3





















 


(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 below) 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, 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 C.(c)(3).


 


For purposes of this Article FIRST
C., “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
C., stock ownership is determined under the Regulations.


 


D.            The Executive’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 Executive’s
employment duties or reporting responsibilities; (b) a reduction in the
annual base salary made available by the Corporation to the Executive from the
annual base salary in effect


 


4





















 


immediately prior to a
Change in Control; or (c) a material diminution in the Executive’s status,
working conditions or other economic benefits from those in effect immediately
prior to a Change in Control.


 


E.              “Cause” shall mean (i) the commission by the Executive
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 illegal drug, an intoxicant or a
controlled substance which renders the Executive incapable of performing his or
her material duties to the satisfaction of the Corporation and/or its
subsidiaries.


 


F.              The “Special
Severance Payment” shall mean a lump sum payment equal to the difference
between (a) the sum of (i) the product of five and the annual base
salary in effect immediately prior to a change in the Executive’s Circumstances
of Employment or the termination other than for Cause of the Executive’s
employment by the Corporation, as the case may be, and (ii) the product of
five and the largest annual bonus paid to or accrued with respect to the
Executive by the Corporation during the three fiscal years immediately
preceding the termination of the Executive’s employment and (b) the
aggregate of all base salary and bonus amounts paid to the Executive by the
Corporation during the period commencing upon a Change in Control and ending on
the date of termination of the Executive’s employment.


 


G.             As a condition to
receiving the Special Severance Payment, the Executive shall execute the
General Release in the form attached as Exhibit A hereto.


 


5





















 


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


 


I.                 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 Executive or threatened to be imposed upon the
Executive by 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 Executive 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 Executive 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 Executive so that the effect
of receiving all such indemnity payments will be that the Executive shall be
held harmless on an after-tax basis from the amount of all Excise Taxes imposed
upon payments made to the Executive by the Corporation pursuant to this
Agreement, it being the intent of the parties that the Executive shall not
incur any out-of-pocket 


 


6





















 


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 Executive 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 Executive is required to file a tax return showing a
liability for an Excise Tax or other tax). 
A Request shall set forth the amount of the indemnity payment due to the
Executive and the manner in which such amount was calculated, and the Executive
shall thereafter submit such other evidence of the indemnity to which the
Executive 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 Executive 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 Executive’s receipt of a revenue agent’s report (or
similar document) notifying the Executive that an Excise Tax may be imposed and
(c) within fifteen (15) business days of the Executive’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 Executive pursuant to this Article SECOND.


 


7





















 


E.              After receiving any
of the aforementioned notices, and subject to the Executive’s right to control
any and all administrative and judicial proceedings with respect to, or arising
out of, the examination or the Executive’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
Executive’s possession or under the Executive’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 Executive 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 Executive’s behalf, and (d) to pay any tax
increase on the Executive’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.


 


F.              The Corporation
shall be solely responsible for all reasonable
legal and accounting or other expenses (whether of the Executive’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 Executive
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.


 


8





















 


G.             The liability of the Corporation shall not be affected
by the Executive’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 Executive may not compromise or settle a
claim which he is indemnified against hereunder without the consent of the
Corporation, unless the Executive 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 Executive’s
employment and continued employment, the payment of the Executive’s
compensation by the Corporation, and the Corporation entrusting the Executive
with Confidential Information (as defined below), 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 made a part hereof as if set forth in full herein.


 


FOURTH:  At
Will Employment.  Nothing in this
Agreement shall confer upon the Executive the right to remain in the employ of
the Corporation, it being understood and agreed that (a) the Executive 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 Executive’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 Executive pursuant to Article FIRST
hereof.


 


9





















 


FIFTH:  Costs
of Enforcement.  In the event that
the Executive incurs any costs or expenses, including attorneys’ 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 promptly pay to the Executive all such costs and expenses.  In the event that the Corporation incurs any
costs or expenses, including attorneys’ fees, in the enforcement of its rights
under Article THIRD then, unless the Executive is wholly successful in
defending against the enforcement of such rights, the Executive shall promptly
pay to the Corporation all such costs and expenses.


 


SIXTH:  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 Executive in the manner
herein provided; and if intended for the Executive, shall be mailed to him at
the address of the Executive first set forth above or at such other address of
which the Executive shall have given notice to the Corporation in the manner
herein provided.


 


SEVENTH:  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, including without limitation the Prior
Agreement, are hereby terminated and superseded by this Agreement.


 


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


 


10





















 


NINTH:  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.


 


11





















 


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


 


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/ Shelley
  Boxer

  
	
   

  	
   

  	
   

  	
  SHELLEY BOXER

  



 


12





















 


Exhibit A


RELEASE


 


WHEREAS, Shelley Boxer
(the “Executive”) was a party to an Amended and Restated Agreement dated as of December      ,
2005 (the “Agreement”) by and between the Executive and MSC INDUSTRIAL DIRECT CO., INC., a New
York corporation (the “Corporation”), pursuant to which the Executive served as
the                        
of the Corporation, and the employment of the Executive 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 Executive pursuant to the Agreement that the Executive
execute and deliver this Release to the Corporation.


 


NOW, THEREFORE, in
consideration of the receipt by the Executive the benefits under the Agreement,
which constitute a material inducement to enter into this Release, the
Executive 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 Executive 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 Executive’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 Executive, 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 Executive is not releasing the
Corporation from any of the Corporation’s obligations (a) under the
Agreement, (b) to provide the Executive with insurance coverage defense
and/or indemnification as an officer or director of the Corporation 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 Executive’s
rights under the Corporation’s Associate Stock Purchase Plan, 1995 Stock Option
Plan, 1998 Stock Option Plan, 2001 Stock Option Plan, 1995 Restricted Stock
Plan or the 2005 Omnibus Equity Plan, as applicable.


 


2





















 


The Corporation has
advised the Executive in writing to consult with an attorney of his choosing
prior to the signing of this Release and the Executive hereby represents to the
Corporation that he has in fact consulted with such an attorney prior to the
execution of this Release.  The Executive
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 Executive 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 Executive’s waiver of rights under the
ADEA shall become effective seven days from the date the Executive executes
this Release.


 


IN WITNESS WHEREOF, the
undersigned has executed this Release on the         
day of December, 2005.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  SHELLEY BOXER

  	
   

  



 


3





















 


Exhibit B


 


ASSOCIATE
CONFIDENTIALITY, NON-SOLICITATION

AND NON-COMPETITION AGREEMENT


 


ASSOCIATE CONFIDENTIALITY, NON-SOLICITATION AND NON-
COMPETITION AGREEMENT dated as of December 27, 2005, between MSC
Industrial Direct Co., Inc., on behalf of itself and its subsidiaries
(collectively, “Employer” or “Corporation”), and Shelley Boxer (“Associate”).


 


In consideration of the Associate’s employment and
continued employment, the payment of the Associate’s compensation by Employer,
and Employer entrusting the Associate with Confidential Information (as defined
below), 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; The Home Depot, Inc. and McMaster Carr Supply.


 


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.


 


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


 


2





















 


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 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,


 


3





















 


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.


 


[Rest of page intentionally
left blank]


 


4





















 


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


 


	
  MSC
  INDUSTRIAL DIRECT CO., INC.:

  	
  ASSOCIATE:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/
  David Sandler

  	
   

  	
  By: 

  	
    /s/
  Shelley Boxer

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  	
  Printed Name:
  SHELLEY BOXER

  
	
   

  
	
  Date: December 27,
  2005

  	
  Date: December 27,
  2005

  
							



 


5