Exhibit 10.2


 


AMENDED AND RESTATED AGREEMENT
(this “Agreement”), dated as of December 27, 2005, by and between MSC
INDUSTRIAL DIRECT CO., INC., a New York corporation with its principal office
at 75 Maxess Road, Melville, New York 11747 (the “Corporation”), and CHARLES A.
BOEHLKE, JR. having an address at                                                                                                        
(the “Executive”).


 


W  I  T  N  E
S  S  E  T  H:


 


WHEREAS, the Corporation
desires to employ the Executive, and the Executive desires to be employed by
the Corporation, upon the terms and conditions hereinafter set forth;


 


WHEREAS, the Executive
and the Corporation are parties to an Agreement dated June 19, 2000 (the “Prior
Agreement”), providing the Executive with, among other things, certain benefits
on and in connection with a “Change in Control” as defined therein;


 


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 covenant and agree as follows:


 


1.                                       Employment.  The Corporation continues to employ the
Executive as Executive Vice President and Chief Financial Officer of the Corporation
(“CFO”) commencing on  December 27,  2005. 
If the Corporation shall so request, the Executive shall become and
shall, during such portion or portions of the Executive’s employment with the Corporation
hereunder as the Corporation shall request, act as a director and/or officer of
the Corporation and/or any of its subsidiaries without any compensation in
addition to that provided in Section 2 hereof.  The Executive accepts such employment, agrees
to serve as the Executive Vice President and CFO of the Corporation, agrees to
perform such other services or act in such other capacities as shall from time
to time be assigned to him by the Chief Executive Officer, President or by the
Chief Operating Officer of the Corporation or pursuant to the authorization of
the Board of Directors of the Corporation (the “Board of Directors”) and agrees
diligently and competently to devote his entire business time, skill and
attention to such services.


 


2.                                       Compensation.  The Corporation shall pay to the Executive,
and the Executive shall accept from the Corporation, for the Executive’s
services hereunder, base compensation at the rate of $                  
per annum (the “Annual Base Compensation”), payable in accordance with the Corporation’s
customary payroll policy; provided, however, that the Board of
Directors of the Corporation may from time to time increase such rate of
compensation to such amount as it shall determine.  The Executive will be eligible (a) for
additional bonus compensation at such time at which other executive employees
of the Corporation are considered for annual bonus awards, and (b) to
receive additional stock options and/or other equity based compensation awards as
determined in the sole and absolute discretion of the Board of Directors based
upon the performance of the Corporation and the individual performance of the
Executive.  The 


 


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amount of such bonus award, if any, shall be
determined in the sole and absolute discretion of the Corporation and is
anticipated to be in the range between 25% and 60% of Annual Base Compensation,
none of which is guaranteed.  The number
of additional stock options, if any, which may be granted is anticipated to be
in the range of 40,000 to 60,000 shares, none of which stock options is
guaranteed.  The Executive acknowledges
that, in entering into this Agreement, he has not relied on any estimates with
respect to the amount of any future bonus award or the number of additional
stock options and agrees that no amounts have been promised or assured.


 


3.                                       Expenses.  During the Executive’s employment hereunder,
the Corporation shall pay or reimburse the Executive for all reasonable and
itemized business expenses, including, but not limited to, an allowance in an
amount of $900 per month for all automobile related expenses, incurred by the
Executive while conducting or furthering the business of the Corporation, including
without limitation maintenance, insurance and gasoline.  Such allowance will be paid in accordance
with the Corporation’s customary payroll policy.  The Executive shall keep appropriate records
of such expenses and shall submit receipts or other evidence relating to them
in accordance with the Corporation’s policy. 
Reimbursement for such expenses shall be subject to such regulations and
procedures as the Corporation may determine from time to time.


 


4.                                       Vacation.  During the Executive’s employment hereunder,
the Executive shall be entitled to four (4) weeks of paid vacation
leave.  The time at which the Executive
will be absent from the office shall be at the Executive’s sole discretion,
provided such time is compatible with the vacation and work schedule of
other executive employees.


 


5.                                       Benefits.  During the Executive’s employment hereunder,
the Executive shall be entitled to participate in such fringe benefits as
generally are made available by the Corporation to 


 


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executive employees from time to time, including, but
not limited to, medical, disability, retirement and insurance plans; provided,
however, that the Executive’s right to participate in any plan shall be
subject to the applicable eligibility requirements of particular benefit plans
and, in the case of benefit plans providing for discretionary grants or awards,
to the discretion of the person or entity vested with such discretion.


 


6.                                       Severance.  Except as provided in Section 7 hereof:


 


(a)                            In the
event of the termination of the Executive’s employment hereunder other than for
Cause (as such term is hereinafter defined), the Executive shall be entitled to
a severance payment in an amount equal only to the highest Annual Base
Compensation of the Executive received at any time during the period of his
employment (which Annual Base Compensation shall not include any amount for any
bonus), and the Executive shall continue to receive, at the Corporation’s
expense, the automobile allowance and medical insurance benefits referred to
above for a period of one year following such termination.  The severance payment shall be payable in
accordance with the Corporation’s customary payroll policy during the one-year
period following such termination.


 


(b)                           In
addition, upon the termination of the Executive’s employment hereunder other
than for Cause, the Corporation shall retain the Executive as a consultant to
the Corporation for a one-year period commencing on the date of such
termination.  The Executive agrees to
accept such retention and to provide consulting services to the Corporation
with respect to financial matters; provided, however, that the
Executive shall not be required to devote more than 


 


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ten (10) hours
in any calendar quarter to such services. 
For such consulting services, the Corporation shall pay to the Executive
compensation at the rate of $2,500 per annum. 
All stock options, stock appreciation rights, restricted stock, and other
equity based compensation awards theretofore vested but not yet exercised will
expire thirty (30) days after the termination of such consultancy in accordance
with the terms of the applicable Corporation equity compensation plan.


 


(c)                            In the
event of the termination of the Executive’s employment hereunder for Cause, the
Executive shall be entitled only to receive any accrued but unpaid base
compensation hereunder through the date of such termination, and all other
benefits hereunder shall be terminated as of the date of such termination.


 


7.                                       Change
in Control.


 


(a)                            If,
within two years following a Change in Control, the Executive’s Circumstances
of Employment (as such term is hereinafter defined) shall have changed, the
Executive may terminate his employment hereunder 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 two (2) years
following a Change in Control, the Corporation shall terminate the Executive’s
employment other than for Cause, the Corporation shall, subject to Sections 12
and 13 hereof, pay to the Executive, (the “Special Severance Amount”) (X) an
amount equal to the sum of (i) the product of two (2) and the annual
base salary 


 


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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 two (2) and
the targeted bonus for the Executive in effect immediately prior to a change in
Executive Circumstances of Employment or termination other than for Cause, as
the case may be, such payment to be made in accordance with the Corporation’s
regular payroll policies, the first installment being made on the fifth (5th) business day following
the six (6) months’ anniversary thereof, and then the balance being paid
in equal installments over the remainder of the two year period contemplated by
the Executive Confidentiality, Non-Solicitation and Non-Competition Agreement
referred in Section 13 hereof; (Y) payment of a pro rata portion of the
Executive’s targeted bonus in effect immediately prior to the date such change
in Executive’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 Executive’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 Executive’s date of termination of employment
(other than termination for Cause), the Corporation shall, at Executive’s
option, (A) pay Executive a monthly automobile allowance 


 


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in
amounts equal to those in effect immediately prior to such termination, if
applicable, or (B) continue to make the monthly lease payments under the
automobile lease in effect for the benefit of Executive immediately prior to
such termination.


 


(b)                           A Change
in Control shall be deemed to occur upon:


 


(1)                                  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 the
Regulations), 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;


 


(2)                                  a
change in the effective control of the Corporation, which shall occur on the
date that (A) 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 


 


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families  and/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 (B) 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)                                  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 (A) a shareholder of the Corporation (immediately before
the asset transfer) in exchange for or with respect to its stock; (B) an
entity, 50% or more of the total value or voting power of which is owned,
directly or indirectly, by the Corporation; (C) 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
(D) an entity, at least 50% of the total value or voting power of which is
owned, directly or indirectly, by a person described in Section 7(b)(3)(C).


 


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For purposes of this Section 7(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 Section 7(b),
stock ownership is determined under the Regulations.


 


(c)                            The
Executive’s “Circumstances of Employment” shall have changed if there shall
have occurred any of the following events: (1) a material reduction or
change in the Executive’s employment duties or reporting responsibilities; (2) a
reduction in the annual base salary made available by the Corporation to the
Executive from the annual base salary in effect immediately prior to a Change
in Control; or (3) 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.


 


(d)                           “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.


 


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


 


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


 


8.                                       Continued
Medical Coverage.  If Executive’s employment
is terminated in either of the circumstances described in Section 7(a) hereof,
in the event Executive 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 Executive’s employment with the Corporation, Executive will be
entitled to continuation of such coverage, at the Corporation’s expense, for a
period of eighteen (18) months, provided that Executive continues to be
eligible for COBRA coverage.


 


9.                                       Outplacement.  If Executive’s employment is terminated in
either of the circumstances described in Section 7(a) hereof, Executive
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 Executive’s
employment with the Corporation.


 


10.                                 Tax
Indemnification.


 


(a)                            In the
event that, as a result of any of the payments or other consideration provided
for or contemplated by 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 


 


10





















 


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 Section 10 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 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 Section 10
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 


 


11





















 


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 (1) 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, (2) 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 (3) 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 Section 10.


 


(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 (1) to examine all records, files and other information and
documentation in the Executive’s possession or under the Executive’s control, 


 


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(2) 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, (3) 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 (4) 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 Section 10.


 


(g)                           The
liability of the Corporation shall not be affected by the Executive’s failure
to give any notice provided for in this Section 10 unless such failure
materially prejudices the Corporation’s ability to effectively resist any 


 


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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).


 


11.                                 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.


 


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


 


13.                                 Executive
Confidentiality, Non-Solicitation and Non-Competition Agreement.  In consideration of the Executive’s
employment and continued employment, the payment of Executive’s compensation by
the Corporation, the Corporation entrusting Executive with Confidential
Information (as defined below), and the benefits provided hereunder, including
without limitation the Special Severance Payment and the changes effected
hereunder by the Corporation so as to make the benefits to Executive provided
under the Prior Agreement and hereunder in compliance with the Regulations, the
parties have entered into the Executive 


 


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Confidentiality, Non-Solicitation and Non-Competition
Agreement as Exhibit B hereto, which is hereby incorporated by reference
herein and made a part hereof as if set forth in full herein.


 


14.                                 Miscellaneous.


 


(a)                            This
Agreement shall be construed, interpreted and enforced in accordance with the
laws of the State of New York.


 


(b)                           This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.


 


(c)                            The
provisions of this Agreement shall be severable, and the illegality,
unenforceability or invalidity of any provision of this Agreement shall not
affect or impair the remaining provisions hereof, and each provision of this
Agreement shall be construed to be valid and enforceable to the full extent
permitted by law.


 


(d)                           This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the party to be charged therewith.


 


(e)                            All
notices required and allowed hereunder shall be in writing, and shall be deemed
given if delivered personally or sent by certified mail, return receipt
requested, first-class postage and registration fees prepaid, and addressed to
the party for whom intended at the address set forth on the first page or
to such other address as has been most recently specified for a party by notice
to the other party.


 


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(f)                              The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as or be construed to be a waiver of any subsequent
breach or violation.


 


15.                                 Term.  The initial term of sections 7, 8 , 9 and 12
of this Agreement (the “Change in Control Provisions”) shall be three (3) years
from the date hereof, and the Change in Control Provisions shall automatically
renew for successive three (3) year terms unless terminated by the Corporation,
in its sole discretion, by delivering to Executive written notice thereof
provided to Executive at least eighteen (18) months prior to the end of the
initial term or such successive terms, as applicable.


 


 


[Rest of page left intentionally blank]


 


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IN WITNESS WHEREOF, each
of the parties hereto has executed this Agreement the day and year first above
written.


 


	
   

  	
  MSC INDUSTRIAL
  DIRECT CO., INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ David Sandler

  	
   

  
	
   

  	
  Name:

  	
  David Sandler

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Charles A.
  Boehlke, Jr.

  	
   

  
	
   

  	
  Charles A. Boehlke, Jr.

  
					



 


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Exhibit A


 


RELEASE 


 


WHEREAS, Charles A.
Boehlke, Jr. (the “Executive”) was a party to an 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 of 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.


 


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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.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Charles A.
  Boehlke, Jr.

  	
   

  



 


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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 December 27,
2005, between MSC Industrial Direct Co., Inc., on behalf of itself and its
subsidiaries (collectively, “Employer” or “Corporation”), and Charles A.
Boehlke, Jr. (“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”), including without
limitation the changes effected in the Agreement by the Corporation so as to
make the benefits to Associate provided under the Prior Agreement and in the
Agreement in compliance with the Regulations, 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.


 


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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 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 


 


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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, 


 


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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.


 


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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, 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 


 


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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.


 


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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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intentionally blank]


 


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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/ David
  Sandler

  	
   

  	
   

  	
  By:

  	
  /s/ Charles A.
  Boehlke, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Printed Name:
  Charles A. Boehlke, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:   December 27,
  2005

  	
   

  	
  Date:  December 27,
  2005

  
										



 


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