EXHIBIT 10.1
EMPLOYMENT AGREEMENT
JULY 14, 2004
The parties to this Employment Agreement (this "Agreement") are Wesco
International, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇ ▇▇▇▇▇ (the
"Executive"). The parties wish to provide for the employment of the Executive as
Senior Vice President and Chief Operating Officer of the Company as of the date
first above written (the "Effective Date").
Accordingly, the parties, intending to be legally bound, agree as follows:
1. Position and Duties.
1.1. Titles; Reporting; Duties. During the Employment Term (as defined in
Section 2), the Company shall employ the Executive and the Executive shall serve
the Company as its Senior Vice President and Chief Operating Officer on an
at-will basis. As Senior Vice President and Chief Operating Officer of the
Company, the Executive shall report to and otherwise shall be subject to the
direction and control of the Chief Executive Officer of the Company and shall
have such duties, responsibilities and authorities consistent with such position
as may be assigned to him by the Chief Executive Officer from time to time. The
Executive shall use his best efforts to promote the Company's interests and he
shall perform his duties and responsibilities faithfully, diligently and to the
best of his ability, consistent with sound business practices. The Executive may
be required by the Chief Executive Officer to provide services to, or otherwise
serve as an officer or director of, any direct or indirect subsidiary of the
Company. The Executive shall comply with the Company's policies applicable to
executive officers of the Company.
1.2. Outside Activities. The Executive shall devote substantially all of
his full working time to the business and affairs of the Company.
Notwithstanding the preceding sentence, the Executive may, with the prior
approval of the Chief Executive Officer, engage in such other business and
charitable activities that do not violate Section 8, create a conflict of
interest or the appearance of a conflict of interest with the Company or
materially interfere with the performance of his obligations to the Company
under this Agreement.
1.3. Place of Employment. The Executive shall perform his duties under
this Agreement at the Company's principal executive offices in Pittsburgh,
Pennsylvania with the likelihood of substantial business travel. The Executive
shall relocate his primary residence to Pittsburgh, Pennsylvania as soon as
practicable after the Effective Date. The Company shall pay or reimburse the
Executive's moving costs and related expenses in accordance with the Company's
policy. During the period prior to such relocation, the Company shall pay or
reimburse the Executive for his temporary housing
costs in Pittsburgh; provided, however, that such temporary housing arrangements
shall be subject to pre-approval by the Company.
2. Term of Employment. The term of the Executive's employment by the Company
under this Agreement shall be for a period of two (2) years commencing on the
Effective Date (the "Employment Term"). The Employment Term shall be subject to
earlier termination under Section 5 or Section 6 or extension as described in
the next sentence. The Employment Term shall be extended automatically for an
additional year as of the first anniversary of the Effective Date and as of each
subsequent annual anniversary of the Effective Date (each such anniversary is
referred to herein as an "Anniversary Date") unless at least ninety (90) days
prior to any such Anniversary Date either party shall have given notice to the
other party that the Employment Term shall not be so extended.
3. Compensation.
3.1. Base Salary. During the Employment Term, the Executive shall be
entitled to receive a base salary ("Base Salary") at the annual rate of $450,000
for services rendered to the Company or any of its direct or indirect
subsidiaries, payable semi-monthly in accordance with the Company's regular
payroll practices. The Executive's Base Salary will be reviewed annually by the
Compensation Committee Board of Directors of the Company (the "Board") and may
be adjusted in the Compensation Committee's discretion.
3.2. Annual Bonus Compensation. During the Employment Term, the Executive
also shall be entitled to receive incentive compensation ("Bonus") in such
amounts, ranging from 0% to 100% of Base Salary, and at such times as the
Compensation Committee of the Board may determine in its discretion to award to
him under any incentive compensation or other bonus plan or plans for senior
executives of the Company as may be established by the Company from time to time
(collectively, the "Executive Bonus Plan"). Such Bonus amounts shall be based
upon the degree of achievement of Company earnings, sales growth and return on
investment or other performance criteria established by the Compensation
Committee of the Board. For any partial year (including 2004), the Bonus
opportunity shall be prorated based upon the number of days worked during such
year.
3.3. Stock Option Grants.
(a) Matching Stock Option Award. As of the effective Date, the
Company shall grant to the Executive a matching stock option award to purchase a
number of shares of Company Common Stock equal to two times the number of shares
of Company Common Stock purchased by the Executive as a long-term investment in
the open market. This stock option award, granted as of the effective date, will
assume that an investment purchase of 50,000 shares of WESCO's common stock will
be completed in the first twelve (12) months following the effective date. In
the event that less than 50,000 shares are purchased, options equal to twice the
difference will not
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vest and will be forfeited. If more than 50,000 shares are purchased within the
first twelve (12) months following the effective date, a supplemental matching
stock option award equal to two times the difference greater than 50,000 will be
granted. These matching options shall time-vest on a ratable basis on the first,
second and third annual anniversaries of the date of grant. The exercise price
of the option grants shall be 100% of the fair market value of the Company's
common stock as of the date of grant of the option, as determined in accordance
with the Company's Long-Term Incentive Plan, and shall have a stated term of
9.75 years from the date of grant. Notwithstanding the foregoing, these options
shall be subject to all of the terms and conditions of the Company's Long-Term
Incentive Plan and an individual stock option agreement to be entered into by
the Company and the Executive.
(b) New Senior Executive Hire Stock Option Award. As of the
Effective Date, the Company shall grant to the Executive a new senior executive
hire stock option award to purchase up to 100,000 shares of Company Common
Stock. The exercise price of this option shall be 100% of the fair market value
of the option shares as of the Effective Date, as determined in accordance with
the Company's Long-Term Incentive Plan, and shall have a stated term of 9.75
years from the date of grant. These options shall be subject to
performance-vesting based on the annual achievement of a 5% corporate EBITDA
margin in 2005 or a subsequent year. Notwithstanding the foregoing, this option
award shall be subject to all of the terms and conditions of the Company's
Long-Term Incentive Plan and an individual stock option agreement to be entered
into by the Company and the Executive.
(c) Future Stock Option Awards. Future stock option grants to the
Executive shall be based upon performance and award guidelines established
periodically by the Compensation Committee of the Board.
4. Expenses and Other Benefits.
4.1. Reimbursement of Expenses. During the Employment Term, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him (in accordance with the policies and practices presently
followed by the Company or as may be established by the Board for its senior
executive officers) in performing services under this Agreement, provided that
the Executive properly accounts for such expenses in accordance with the
Company's policies.
4.2. Employee Benefits. During the Employment Term, the Executive shall be
entitled to participate in and to receive benefits as a senior executive under
all of the Company's employee benefit plans, programs and arrangements available
to senior executives, subject to the eligibility criteria and other terms and
conditions thereof, as such plans, programs and arrangements may be duly
amended, terminated, approved or adopted by the Board from time to time.
4.3. Automobile Allowance. During the Employment Term, the Executive shall
be entitled to an automobile allowance of $1,000 per month.
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5. Termination of Employment.
5.1. Death. The Executive's employment under this Agreement shall
terminate upon his death.
5.2. Termination by the Company. The Company may terminate the Executive's
employment under this Agreement with or without Cause (as defined below). For
purposes of this Agreement, the Company shall have "Cause" to terminate the
Executive's employment under this Agreement and may complete such termination
within 30 days after the Company gives notice to the Executive that it believes
it has cause to terminate his employment by reason of any of the following: (a)
a material breach of this Agreement by the Executive; (b) the Executive engaging
in a felony or engaging in conduct which is in the good faith judgment of the
Board, applying reasonable standards of personal and professional conduct,
injurious to the Company, its customers, employees, suppliers, or shareholders;
(c) the Executive's failure to timely and adequately perform his duties under
the Agreement; or (d) the Executive's material breach of any manual or written
policy, code or procedure of the Company.
5.3. Termination by the Executive. The Executive may terminate his
employment under this Agreement with or without Good Reason (as defined below).
If such termination is with Good Reason, the Executive shall give the Company
written notice, which shall identify with reasonable specificity the grounds for
the Executive's resignation and provide the Company with thirty (30) days from
the day such notice is given to cure the alleged grounds for resignation
contained in the notice. A termination shall not be for Good Reason if such
notice is given by the Executive to the Company more than sixty (60) days after
the occurrence of the event that the Executive alleges is Good Reason for his
termination hereunder. For purposes of this Agreement, "Good Reason" shall mean
any of the following to which the Executive shall not consent in writing: (a) a
reduction in the Executive's Base Salary, excluding any reduction that occurs in
connection with an across-the-board reduction of the salaries of the entire
senior management team; (b) a relocation of the Executive's primary place of
employment to a location more than 50 miles from Pittsburgh, Pennsylvania; or
(c) any material reduction in the Executive's offices, titles, authority, duties
or responsibilities.
5.4. Date of Termination. "Date of Termination" shall mean the earlier of
(a) the date of expiration of the Employment Term (as set forth in Section 2)
and (b) if the Executive's employment is terminated (i) by his death, the date
of his death, or (ii) pursuant to the provisions of Section 5.2, Section 5.3 or
Section 6, as the case may be, the date on which the Executive's employment with
the Company actually terminates.
6. Disability. The Executive shall be determined to be "Disabled" (and the
provisions of this Section 6 shall be applicable) if the Executive is unable to
perform his duties under this Agreement on essentially a full-time basis for six
(6) consecutive months by reason of a physical or mental condition (a
"Disability") and, within thirty (30) days after the Company gives notice to the
Executive that it intends to replace him due
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to his Disability, the Executive shall not have returned to the performance of
his duties on essentially a full-time basis. Upon a determination that the
Executive is Disabled, the Company may replace the Executive without breaching
this Agreement.
7. Compensation of the Executive upon Termination.
7.1. Death. If the Executive's employment under this Agreement is
terminated by reason of his death, the Company shall pay to the person or
persons designated by the Executive for that purpose in a notice filed with the
Company, or, if no such person shall have been so designated, to his estate, the
amount of (a) the Executive's accrued but unpaid Base Salary through the Date of
Termination, (b) any accrued but unpaid Bonus; provided that such Bonus is
determined to have been earned under the terms of the Executive Bonus Plan and
provided that such Bonus shall be payable at such time as the bonuses of other
senior executives are payable by the Company and (c) any other amounts that may
be reimbursable by the Company to the Executive as expressly provided under this
Agreement. Any amounts payable under this Section 7.1 shall be exclusive of and
in addition to any payments which the Executive's widow, beneficiaries or estate
may be entitled to receive pursuant to any employee benefit plan or program
maintained by the Company.
7.2. Disability. In the event of the Executive's termination by reason of
Disability pursuant to Section 6, the Executive shall continue to receive his
Base Salary as well as all welfare benefits (on an equivalent basis to Section
7.4(a)(v) below) through the Date of Termination; provided, however, that such
Base Salary payments and continued benefits shall be offset dollar-for-dollar by
the amount of any disability income payments provided to the Executive under any
Company disability policy to the extent that such disability insurance was
funded by the Company.
7.3. By the Company for Cause or the Executive Without Good Reason. If the
Executive's employment is terminated by the Company for Cause, or if the
Executive terminates his employment other than for Good Reason, the Company
shall pay to the Executive, within thirty (30) days of the Date of Termination,
the amount of any accrued but unpaid Base Salary through the Date of Termination
and the Company thereafter shall have no further obligation to the Executive
under this Agreement, other than for payment of any amounts accrued and vested
under any employee benefit plans or programs of the Company.
7.4. By the Executive for Good Reason or the Company other than for Cause.
(a) Severance Benefits on Non-Change in Control Termination. Subject
to the provisions of Section 7.4(b) and Section 7.4(d), if prior to the
occurrence of a Change in Control or more than one (1) year after the occurrence
of a Change in Control the Company terminates the Executive's employment without
Cause, or the Executive terminates his employment for Good Reason, then the
Executive shall be entitled to the following benefits (the "Severance
Benefits"):
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(i) the sum of his accrued but unpaid Base Salary through the
Date of Termination, that amount being payable in a single lump sum cash payment
within thirty (30) days of the Date of Termination;
(ii) a cash amount equal to the Executive's pro rata Bonus for
the fiscal year in which the Date of Termination occurs, if such Bonus is deemed
earned under the Executive Bonus Plan, payable at such time as bonuses for the
annual period are paid to other executive officers of the Company (such pro rata
Bonus shall be based on a fraction, the numerator of which is the number of days
from the first day of the fiscal year of the Company in which such termination
occurs through and including the Date of Termination and the denominator of
which is 365)
(iii) a cash amount equal to 1.5 times the Executive's Monthly
Base Salary in effect at the Date of Termination that total amount being payable
in monthly installments for the greater of (A) the remainder of the Employment
Term or (B) eighteen (18) months following the Date of Termination.
(iv) the Executive shall be fully vested in his stock options
except for any stock options that will remain unvested and be forfeited if their
vesting is specifically conditioned on the achievement of operational and/or
financial performance criteria that have not been met. Any and all vested stock
options will remain excercisable for a period of 60 days following the date of
termination; and
(v) the Company shall pay the full cost of the Executive's
COBRA continuation coverage as such coverage is required to be continued under
applicable law; provided, however, that, notwithstanding the foregoing, the
benefits described in this Section 7.4(a)(v) may be discontinued prior to the
end of the period provided in this subsection (v) to the extent, but only to the
extent, that the Executive receives substantially similar benefits from a
subsequent employer.
(b) Change in Control Benefits. Subject to the provisions of Section
7.4(b) and Section 7.4(d), if within the one (1)-year period following the
occurrence of a Change in Control the Company terminates the Executive's
employment without Cause, or the Executive terminates his employment for Good
Reason, then the Executive shall be entitled to the following Severance
Benefits:
(i) the sum of his accrued but unpaid Base Salary through the
Date of Termination, that amount being payable in a single lump sum cash payment
within thirty (30) days of the Date of Termination;
(ii) a cash amount equal to the Executive's pro rata Bonus for
the fiscal year in which the Date of Termination occurs, if such Bonus is deemed
earned under the Executive Bonus Plan, payable at such time as bonuses for the
annual period are paid to other executive officers of the Company (such pro rata
Bonus shall be based on a fraction, the numerator of which is the number of days
from the first day of the fiscal year of the Company in which such termination
occurs through and
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including the Date of Termination and the denominator of which is 365); and
(iii) a cash amount equal to 1.5 times the Executive's Monthly
Base Salary in effect at the Date of Termination, that amount being payable in
monthly installments for twenty-four (24) months following the Date of
Termination;
(iv) the Executive shall be fully vested in his stock options,
and vested stock options shall remain exercisable by the Executive for one year
following the Date of Termination unless the transaction documents relating to
the Change in Control provide for the earlier expiration of such stock options.
(v) the Company shall pay the full cost of the Executive's
COBRA continuation coverage as such coverage is required to be continued under
applicable law; provided, however, that, notwithstanding the foregoing, the
benefits described in this Section 7.4(b)(v) may be discontinued prior to the
end of the period provided in this subsection (v) to the extent, but only to the
extent, that the Executive receives substantially similar benefits from a
subsequent employer.
(c) Definition of Change in Control. For purposes of this Agreement,
a "Change in Control" shall have the meaning given to such term in the Company's
Long-Term Incentive Plan.
(d) Conditions to Receipt of Severance Benefits under Section
7.4(a).
(i) Release. As a condition to receiving any Severance
Benefits to which the Executive may otherwise be entitled under Section 7.4(a)
or (b), the Executive shall execute a release (the "Release"), which shall
include an affirmation of the restrictive covenants set forth in Section 8 and a
non-disparagement provision, in a form and substance satisfactory to the
Company, of any claims, whether arising under federal, state or local statute,
common law or otherwise, against the Company and its direct or indirect
subsidiaries which arise or may have arisen on or before the date of the
Release, other than any claims under this Agreement or any rights to
indemnification from the Company and its direct or indirect subsidiaries
pursuant to any provisions of the Company's (or any of its subsidiaries')
articles of incorporation or by-laws or any directors and officers liability
insurance policies maintained by the Company. If the Executive fails or
otherwise refuses to execute a Release within a reasonable time after the
Company's request to do so, the Executive shall not be entitled to any Severance
Benefits, or any other benefits provided under this Agreement and the Company
shall have no further obligations with respect to the payment of those benefits
except as may be required by law.
(ii) Limitation on Benefits. If, following a termination of
employment that gives the Executive a right to the payment of Severance Benefits
under Section 7.4(a) or (b) the Executive violates in any material respect any
of the covenants in Section 8 or as otherwise set forth in the Release, the
Executive shall have no further right or claim to any payments or other benefits
to which the Executive
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may otherwise be entitled under Section 7.4(a) or (b) from and after the date on
which the Executive engages in such activities and the Company shall have no
further obligations with respect to such payments or benefits; provided,
however, that the covenants in Section 8 shall continue in full force and
effect.
7.5. Severance Benefits Not Includable for Employee Benefits Purposes.
Except to the extent the terms of any applicable benefit plan, policy or program
provide otherwise, any benefit programs of the Company that takes into account
the Executive's income shall exclude any and all severance payments and benefits
provided under this Agreement.
7.6. Exclusive Benefits. The Severance Benefits payable under Section
7.4(a) and (b) if they become applicable under the terms of this Agreement,
shall be in lieu of any other severance or similar benefits that would otherwise
be payable under any other agreement, plan, program or policy of the Company.
7.7 Certain Additional Payments by the Company.
(a) Calculation of Gross-Up Payment. Notwithstanding anything in
this Agreement to the contrary, the Company's regular outside independent public
accounting firm or its regular outside law firm (the "Professional Firm") shall
determine, promptly following the occurrence of a Change in Control, whether any
economic benefit, payment or distribution by the Company to or for the benefit
of the Executive, whether paid, payable, distributed or distributable pursuant
to the terms of this Agreement or otherwise (a "Payment"), would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), (such excise tax referred to in this Agreement as the
"Excise Tax"). In the event it is determined that any Payments would be subject
to the Excise Tax, then the Executive shall be entitled to receive an additional
payment (a "Gross-Up-Payment") in an amount such that after payment by the
Executive of all applicable federal, state and local income and excise taxes,
the Executive retains an amount equal to the amount he would have retained had
one-half (1/2) of the Excise Tax been imposed upon the Payment; provided,
however, that the foregoing gross-up provision shall not apply in the event that
the Professional Firm determines that the benefits to the Executive under this
Agreement on an after-tax basis (i.e., after federal, state and local income and
excise taxes) if such provision is not applied would exceed the after-tax
benefits to the Executive if Payments were reduced (but not below zero) such
that the value of the aggregate Payments were one dollar ($1) less than the
maximum amount of Payments which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code. The initial Gross-Up
Payment, if any, as determined pursuant to this Section 7.7(a), shall be paid to
the Executive within thirty (30) days of the Date of Termination or, if later,
within five (5) business days of the receipt of the Professional Firm's
determination. With respect to all determinations made by the Professional Firm
under this Section 7.7, the Professional Firm shall provide detailed supporting
calculations both to the Company and the Executive within thirty (30) business
days of the Date of Termination, if applicable, or such earlier time as is
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requested by the Company. All determinations by the Professional Firm under this
Agreement shall be binding upon the Company and the Executive.
(b) Underpayment. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Firm, it is possible that Gross-Up Payments that have not been made by the
Company should have been made ("Underpayment"). In the event that the Executive
is required to make a payment of any Excise Tax, the Professional Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
8. Restrictive Covenants.
8.1. Confidential Information. The Executive hereby acknowledges that in
connection with his employment by the Company he will be exposed to and may
obtain certain information (including, without limitation, procedures,
memoranda, notes, records and customer and supplier lists whether such
information has been or is made, developed or compiled by the Executive or
otherwise has been or is made available to him) regarding the business and
operations of the Company and its subsidiaries or affiliates. The Executive
further acknowledges that such information and procedures are unique, valuable,
considered trade secrets and deemed proprietary by the Company. For purposes of
this Agreement, such information and procedures shall be referred to as
"Confidential Information." The Executive agrees that all Confidential
Information is and shall remain the property of the Company. The Executive
further agrees, except as otherwise required by law and for disclosures
occurring in the good faith performance of his duties for the Company, while
employed by the Company hereunder and thereafter, to hold in the strictest
confidence all Confidential Information, and not to, directly or indirectly,
duplicate, sell, use, lease, commercialize, disclose or otherwise divulge to any
person or entity any portion of the Confidential Information or use any
Confidential Information for his own benefit or profit or allow any person,
entity or third party, other than the Company and authorized executives of the
same, to use or otherwise gain access to any Confidential Information.
8.2. Return of Property. Upon the termination of his employment with the
Company or upon the request of the Company at any time, the Executive shall
promptly deliver to the Company, and shall retain no copies of, any written
materials, records and documents made by the Executive or coming into his
possession concerning the business or affairs of the Company or its direct or
indirect subsidiaries; provided, however, that the Executive shall be permitted
to retain copies of any documents or materials of a personal nature or otherwise
related to the Executive's rights under this Agreement.
8.3. Non Competition. During the Employment Term and for a period of
twenty-four (24) months after the Date of Termination, the Executive shall not,
unless he receives the prior written consent of the Company, directly or
indirectly, own an interest in, manage, operate, join, control, lend money or
render financial or other assistance to, participate in or be connected with, as
an officer, employee, partner,
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stockholder, consultant or otherwise, or engage in any activity or capacity
(collectively, the "Competitive Activities") with respect to any individual,
partnership, limited liability company, firm, corporation or other business
organization or entity (each, a "Person"), that is engaged directly or
indirectly in the distribution of electrical construction products or electrical
and industrial maintenance, repair and operating supplies, or the provision of
integrated supply services, or that is in competition with any of the business
activities of the Company or its direct or indirect subsidiaries anywhere in the
world; provided, however, that the foregoing (a) shall not apply with respect to
any line-of-business in which the Company or its direct or indirect subsidiaries
was not engaged on or before the Date of Termination, and (b) shall not prohibit
the Executive from owning, or otherwise having an interest in, less than one
percent (1%) of any publicly-owned entity or three percent (3%) of any private
equity fund or similar investment fund that invests in companies engaged in the
distribution of electrical construction products or electrical and industrial
maintenance, repair and operating supplies, or the provision of integrated
supply services, provided the Executive has no active role with respect to any
investment by such fund in any Person referred to in this Section 8.3.
8.4. Non-Solicitation. During the Employment Term and for a period of
twenty-four (24) months after the Date of Termination, the Executive shall not,
whether for his own account or for the account of any other Person (other than
the Company or its direct or indirect subsidiaries), intentionally solicit,
endeavor to entice away from the Company or its direct or indirect subsidiaries,
or otherwise interfere with the relationship of the Company or its direct or
indirect subsidiaries with, (a) any person who is employed by the Company or its
direct or indirect subsidiaries (including any independent sales representatives
or organizations), or (b) any client or customer of the Company or its direct or
indirect subsidiaries.
8.5. Assignment of Developments. If at any time or times during the
Executive's employment, whether during work hours or off-duty hours, the
Executive shall (either alone or with others) make, conceive, create, discover,
invent or reduce to practice any Development (as defined below) that (i) relates
to the business of the Company or any customer of or supplier to the Company or
any of the products or services being developed, manufactured or sold by the
Company or which may be used in relation therewith; or (ii) results from tasks
assigned to the Executive by the Company; or (iii) results from the use of
premises or personal property (whether tangible or intangible) owned, leased or
contracted for by the Company, then all such Developments and the benefits
thereof are and shall immediately become the sole and absolute property of the
Company and its assigns, as works made for hire or otherwise. The term
"Development" shall mean any invention, modification, discovery, design,
development, improvement, process, software program, work of authorship,
documentation, technique, know-how, trade secret or intellectual property right
whatsoever or any interest therein (whether or not patentable or registerable
under copyright, trademark or similar statutes or subject to analogous
protection). The Executive shall promptly disclose to the Company (or any
persons designated by it) each such Development. The Executive hereby assign all
rights (including, but not limited to, rights to inventions, patentable subject
matter, copyrights and trademarks)
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the Executive may have or may acquire in the Developments and all benefits
and/or rights resulting therefrom to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and without
disclosing to others the same, all available information relating thereto (with
all necessary plans and models) to the Company.
8.6. Injunctive Relief. The Executive acknowledges that a breach of any of
the covenants contained in this Section 8 may result in material, irreparable
injury to the Company for which there is no adequate remedy at law, that it
shall not be possible to measure damages for such injuries precisely and that,
in the event of such a breach or threat of breach, the Company shall be entitled
to obtain a temporary restraining order and/or a preliminary or permanent
injunction restraining the Executive from engaging in activities prohibited by
this Section 8 or such other relief as may be required to specifically enforce
any of the covenants in this Section 8. To the extent that the Company seeks a
temporary restraining order (but not a preliminary or permanent injunction), the
Executive agrees that a temporary restraining order may be obtained ex parte.
8.7. Adjustment of Covenants. The parties consider the covenants and
restrictions contained in this Section 8 to be reasonable. However, if and when
any such covenant or restriction is found to be void or unenforceable and would
have been valid had some part of it been deleted or had its scope of application
been modified, such covenant or restriction shall be deemed to have been applied
with such modification as would be necessary and consistent with the intent of
the parties to have made it valid, enforceable and effective.
9. Miscellaneous.
9.1. Assignment; Successors; Binding Agreement. This Agreement may not be
assigned by either party, whether by operation of law or otherwise, without the
prior written consent of the other party, except that any right, title or
interest of the Company arising out of this Agreement may be assigned to any
corporation or entity controlling, controlled by, or under common control with
the Company, or succeeding to the business and substantially all of the assets
of the Company or any affiliates for which the Executive performs substantial
services. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legatees,
devisees, personal representatives, successors and assigns.
9.2. Modification and Waiver. Except as otherwise provided below, no
provision of this Agreement may be modified, waived, or discharged unless such
waiver, modification or discharge is duly approved by the Board and is agreed to
in writing by the Executive and such officer(s) as may be specifically
authorized by the Board to effect it. Notwithstanding the foregoing, in the
event that the provisions of the Company's Corporate Governance Guidelines
related to executive employment agreements are revised during the Employment
Term, the Company may make changes to this Agreement, without the consent of the
Executive, in order to conform
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this Agreement with such revised Guidelines. No waiver by any party of any
breach by any other party of, or of compliance with, any term or condition of
this Agreement to be performed by any other party, at any time, shall constitute
a waiver of similar or dissimilar terms or conditions at that time or at any
prior or subsequent time.
9.3. Entire Agreement. This Agreement embodies the entire understanding of
the parties hereof, and supersedes all other oral or written agreements or
understandings between them regarding the subject matter hereof. No agreement or
representation, oral or otherwise, express or implied, with respect to the
subject matter of this Agreement, has been made by either party which is not set
forth expressly in this Agreement.
9.4. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania other than the conflict of laws provision thereof.
9.5. Consent to Jurisdiction and Service of Process.
(a) Disputes Other Than Those Under Section 8. In the event of any
dispute relating to this Agreement, other than a dispute relating solely to
Section 8, the parties shall use their best efforts to settle the dispute,
claim, question, or disagreement. To this effect, they shall consult and
negotiate with each other in good faith and, recognizing their mutual interests,
attempt to reach a just and equitable solution satisfactory to both parties. If
such a dispute cannot be settled through negotiation, the parties agree first to
try in good faith to settle the dispute by mediation administered by the
American Arbitration Association under its Commercial Mediation Rules before
resorting to arbitration, litigation, or some other dispute resolution
procedure. If the parties do not reach such solution through negotiation or
mediation within a period of sixty (60) days, then, upon notice by either party
to the other, all disputes, claims, questions, or differences shall be finally
settled by arbitration administered by the American Arbitration Association in
accordance with the provisions of its Commercial Arbitration Rules. The
arbitrator shall be selected by agreement of the parties or, if they do not
agree on an arbitrator within thirty (30) days after either party has notified
the other of his or its desire to have the question settled by arbitration, then
the arbitrator shall be selected pursuant to the procedures of the American
Arbitration Association (the "AAA") in Pittsburgh, Pennsylvania. The
determination reached in such arbitration shall be final and binding on all
parties. Enforcement of the determination by such arbitrator may be sought in
any court of competent jurisdiction. Unless otherwise agreed by the parties, any
such arbitration shall take place in Pittsburgh, Pennsylvania, and shall be
conducted in accordance with the Commercial Arbitration Rules of the AAA.
(b) Disputes Under Section 8. In the event of any dispute,
controversy or claim between the Company and the Executive arising out of or
relating to the interpretation, application or enforcement of the provisions of
Section 8, the Company and the Executive agree and consent to the personal
jurisdiction of the County Courts
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in Allegheny County, Pennsylvania and/or the United States District Court for
the Western District of Pennsylvania for resolution of the dispute, controversy
or claim, and that those courts, and only those courts, shall have exclusive
jurisdiction to determine any dispute, controversy or claim related to, arising
under or in connection with Section 8 of this Agreement. The Company and the
Executive also agree that those courts are convenient forums for the parties to
any such dispute, controversy or claim and for any potential witnesses and that
process issued out of any such court or in accordance with the rules of practice
of that court may be served by mail or other forms of substituted service to the
Company at the address of its principal executive offices and to the Executive
at his last known address as reflected in the Company's records.
9.6. Withholding of Taxes. The Company shall withhold from any amounts
payable under the Agreement all federal, state, local or other taxes as legally
shall be required to be withheld.
9.7. Notice. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand, mailed within the continental United States by first class
certified mail, return receipt requested, postage prepaid or sent via a
nationally-recognized overnight courier or by facsimile transmission, addressed
as follows:
(a) to the Company, to:
Wesco International, Inc.
Suite 700
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:________________________
(b) to the Executive, to:
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___________________________________
___________________________________
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
9.8. Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
9.9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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9.10. Headings. The headings used in this Agreement are for convenience
only, do not constitute a part of the Agreement, and shall not be deemed to
limit, characterize, or affect in any way the provisions of the Agreement, and
all provisions of the Agreement shall be construed as if no headings had been
used in the Agreement.
9.11. Construction. As used in this Agreement, unless the context
otherwise requires: (a) the terms defined herein shall have the meanings set
forth herein for all purposes; (b) references to "Section" are to a section
hereof; (c) "include," "includes" and "including" are deemed to be followed by
"without limitation" whether or not they are in fact followed by such words or
words of like import; (d) "writing," "written" and comparable terms refer to
printing, typing, lithography and other means of reproducing words in a visible
form; (e) "hereof," "herein," "hereunder" and comparable terms refer to the
entirety of this Agreement and not to any particular section or other
subdivision hereof or attachment hereto; (f) references to any gender include
references to all genders; and (g) references to any agreement or other
instrument or statute or regulation are referred to as amended or supplemented
from time to time (and, in the case of a statute or regulation, to any successor
provision).
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date and year first above written.
WESCO INTERNATIONAL, INC
By:________________________________________
Title:_____________________________________
EXECUTIVE
___________________________________________
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