Exhibit 10.1


 


Amendment to Change in Control Agreement


 


Effective as of December       ,
2007, the Amended and Restated Agreement, by and between David Sandler and MSC
Industrial Direct Co., Inc., dated December 27, 2005 (the “Agreement”)
is hereby amended to comply with Section 409A of the Code and applicable
regulations thereunder.  Unless the
context clearly indicates otherwise, capitalized terms herein shall have the
same meaning as in the Agreement.


 


1.                                       The
following clause is hereby added to the end of paragraph B of Article FIRST
after the phrase “(as hereinafter defined)”, set off by a comma:


 


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


 


2.                                       Paragraph
G of Article FIRST is hereby amended to read as follows:


 


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


 


3.                                       The
first sentence of paragraph C of Article SECOND is hereby amended to read
as follows:


 


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) but, in any event, such Request shall
be made at least 15 business days prior to (i) the end of the Executive’s
taxable year following the Executive’s taxable year in which an Excise Tax is
remitted to a taxing authority or (ii) in the event that no Excise Tax is
remitted, the end of the Executive’s taxable year following the Executive’s
taxable year in which an audit is completed or there is a final and
non-appealable settlement or other resolution of the litigation.


 


4.                                       The
following clause is hereby added to the end of paragraph E of Article SECOND
and to the end of paragraph F of Article SECOND, set off in each case by a
comma:


 

















 


, provided that
all such payments shall be paid (i) by the end of the Executive’s taxable
year following the Executive’s taxable year in which such tax increase is remitted
to a taxing authority, or (ii) in the event that no such tax increase is remitted,
by the end of the Executive’s taxable year following the Executive’s taxable
year in which an audit is completed or there is a final and non-appealable
settlement or other resolution of the litigation.


 


5.                                       Article THIRD
is hereby amended to read as follows:


 


Associate
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 the Executive with Confidential
Information (as defined below), and the benefits provided hereunder, including
without limitation the Special Severance Payment, the parties have entered into
the Associate Confidentiality, Non-Solicitation and Non-Competition Agreement
attached as Exhibit B hereto, which is hereby incorporated by reference
herein and made a part hereof as if set forth in full herein.


 


6.                                       The
first sentence of Article FIFTH is hereby amended to read as follows:


 


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


 


7.                                       Article TENTH
is hereby amended by adding the following sentence at the end thereof:


 


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


 


8.                                       The
second introductory paragraph of the Associate Confidentiality,
Non-Solicitation and Non-Competition Agreement, by and between MSC Industrial
Direct Co., Inc. and David Sandler, dated December 27, 2005, is
hereby amended to read as follows:


 


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


 


[signature page follows]


 


2

















 


Thus, the parties
knowingly and voluntarily execute this Amendment as of the dates set forth
below.


 


 


	
  MSC INDUSTRIAL DIRECT
  CO., INC.:

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J. Grampp

  	
   

  	
  By:

  	
  /s/ David Sandler

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Comp. Director

  	
   

  	
  Name:

  	
  David Sandler

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  12/19/07

  	
   

  	
  Date: 

  	
  12/19/07

  
								



 


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