EXHIBIT 10(h)
LESCO, INC.
AMENDED AND RESTATED
RETENTION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made between LESCO,
Inc., an Ohio Corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxxx (the
"Executive"), dated as of the 1st day November 2003 ("Agreement").
WHEREAS, LESCO and Executive have previously entered into a
Retention Agreement, dated as of February 18, 2002, and the amendment thereto;
and
WHEREAS, the parties desire to amend and restate that previous
Agreement pursuant to the terms and conditions set forth in this Amended and
Restated Retention Agreement.
1. PURPOSE OF THIS AGREEMENT. The Board of Directors of the
Company (the "Board") has determined that it is in the best interests of the
Company and its shareholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the Company, and the
uncertainties and risks that a change of control would pose for the Executive.
To this end, the Board believes it is imperative to encourage the Executive's
full attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other similar corporations.
2. DEFINITIONS. (a) The "Effective Date" shall mean the first
date during the Change of Control Period (as defined in Section 2(b)) on which a
Change of Control (as defined in Section 3) occurs. Anything in this Agreement
to the contrary notwithstanding, if a Change of Control occurs and if the
Executive's employment with the Company is terminated prior to the date on which
the Change of Control occurs, and if it is reasonably demonstrated by the
Executive, as determined by the Board, that such termination of employment (i)
was at the request of a third party who has taken steps reasonably calculated to
effect a Change of Control or (ii) otherwise arose in connection with or in
anticipation of a Change of Control, then for all purposes of this Agreement the
"Effective Date" shall mean the date immediately prior to the date of such
termination of employment.
(b) The "Change of Control Period" shall mean the period
commencing on the date of this Agreement and ending on the third anniversary of
the date hereof; provided, however, that commencing on the date one year after
the date of this Agreement, and on each annual anniversary of such date (such
date and each annual anniversary thereof shall be hereinafter
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referred to as the "Renewal Date"), unless this Agreement is previously
terminated, the Change of Control Period shall be automatically extended so as
to terminate three years from such Renewal Date, unless at least 60 days prior
to the Renewal Date the Company shall give notice to the Executive that the
Change of Control Period shall not be so extended.
3. CHANGE OF CONTROL. For the purpose of this Agreement, a
"Change of Control" shall mean:
(a) The acquisition by any individual, entity or group within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of either (i) the then-outstanding common shares of the Company (the
"Outstanding Company Common Shares") or (ii) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities"); but for
purposes of this subsection (a), the following acquisitions of voting securities
shall not constitute a Change of Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subsection (c) of this Section 3, or (v) any acquisition of less than
50% which becomes a Change of Control passively as the result of a separate
acquisition under clause (ii) or (iii) of this subsection (a); or
(b) Individuals who, as of the date of this Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; but any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board or by a vote of at least a
majority of the members of a committee of the Board consisting entirely of
members of the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding from the Incumbent Board,
for this purpose, any such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (i) the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively, the
then-outstanding common shares and the combined voting power of the
then-outstanding voting
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securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries), and (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 50% or more of,
respectively, the then-outstanding common shares of the corporation resulting
from such Business Combination, or the combined voting power of the
then-outstanding voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's death.
If the Company determines in good faith that the Disability of the Executive has
occurred (as Disability is defined below), it may give to the Executive written
notice in accordance with Section 11(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
reasonably acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's
employment for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), for 10 or more days after a written demand for
substantial performance is delivered to the Executive by the Board or the Chief
Executive Officer of the Company which specifically identifies the manner in
which the Board or Chief Executive Officer believes that the Executive has not
substantially performed the Executive's duties, or
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(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company.
For purposes of this provision, no act or failure to act, on
the part of the Executive, shall be considered "willful" unless (x) it is done
or omitted to be done in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company, or (y)
it is done or omitted to be done in direct contravention of a directive of the
Board or the Chief Executive Officer. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or an Executive Officer of the
Company to whom the Executive reports or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three quarters
of the entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) GOOD REASON. The Executive's employment may be terminated
by the Executive for Good Reason during the period commencing with the Effective
Date and ending one year thereafter. For purposes of this Agreement, "Good
Reason" shall mean:
(i) the assignment to the Executive of any duties inconsistent
in any material respect with the Executive's position (including
status, offices, titles and reporting requirements), authority, duties
or responsibilities, or any other action by the Company which results
in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
(ii) any purported termination by the Company of the
Executive's employment otherwise than for Cause; or
(iii) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive. For avoidance of doubt, a termination
of Executive's employment by Executive under the circumstances described in
clauses (i)-(iii) of this Section 4(c) either prior
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to the Effective Date or following the first anniversary of the Effective Date
shall not constitute termination for Good Reason.
(d) NOTICE OF TERMINATION. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date (within 30 days after that date) specified therein, as the case
may be, (ii) if the Executive's employment is terminated by the Company other
than for Cause or Disability, the Date of Termination shall be the date on which
the Company notifies the Executive of such termination and (iii) if the
Executive's employment is terminated by reason of death or Disability, the Date
of Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD
REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If the Company shall
terminate the Executive's employment other than for Cause or Disability or the
Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the product of
(x) the higher of (I) the Annual Bonus for the year preceding the most recently
completed fiscal year, if any and (II) the Annual Bonus paid or payable, for the
most recently completed fiscal year, if any (such higher amount being referred
to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of Termination,
and the denominator of which is 365 and (3) any compensation previously deferred
by the Executive (together with
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any accrued interest or earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid (the sum of the amounts described in
clauses (1), (2), and (3) shall be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the product of (1) 2.99 and (2) the sum
of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus;
C. an amount equal to the excess of (1) the actuarial
equivalent of the benefit under any qualified defined benefit retirement plan
the Company may have (the "Retirement Plan") (utilizing actuarial assumptions no
less favorable to the Executive than those in effect under the Retirement Plan
immediately prior to the Effective Date), and any excess or supplemental
retirement plan in which the Executive participates (together, the "SERP") which
the Executive would receive if the Executive's employment continued for three
years after the Date of Termination assuming for this purpose that all accrued
benefits are fully vested, over (2) the actuarial equivalent of the Executive's
actual benefit (paid or payable), if any, under the Retirement Plan and the SERP
as of the Date of Termination;
D. an amount equal to the product of (1) three and (2) the
maximum yearly contribution the Company can make to the Executive's account in
the LESCO, Inc. Salary Savings Plan and Trust, or any successor qualified
defined contribution retirement plan, assuming that the Executive has made the
required contribution to the plan; and
E. an amount equal to the excess of the "fair market value"
(which shall be defined as the closing price of LESCO, Inc. common shares on the
Date of Termination) over the option exercise price of shares which are subject
to options in favor of Executive, whether or not exercisable at that time,
provided that Executive surrenders those options to the Company.
(ii) all long-term stock incentive awards held by the
Executive (whether in the form of options, phantom units, performance
shares, restricted shares or other awards of whatever nature, but
excluding any options referred to in clause (i)(E), above) shall fully
vest and all restrictions and conditions shall be removed on the Date
of Termination;
(iii) for three years after the Executive's Date of
Termination, or such longer period as may be provided by the terms of
the applicable welfare benefit plan, program, practice or policy, the
Company shall continue benefits to the Executive and/or the Executive's
family at least equal to those which would have been provided to them
in accordance with the Company's welfare benefit plans, programs,
practices and policies if the Executive's employment had not been
terminated or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives
of the Company and its affiliated companies and their families;
provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other welfare
benefits under another employer-provided plan, the
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medical and other welfare benefits described herein shall be secondary
to those provided under such other plan during such applicable period
of eligibility. For purposes of determining eligibility (but not the
time of commencement of benefits) of the Executive for any retiree
benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until three
years after the Date of Termination and to have retired on the last day
of such period;
(iv) the Company shall, at its sole expense as incurred,
provide the Executive with outplacement services the scope and provider
of which shall be selected by the Executive in his sole discretion;
provided, however, that the cost of the outplacement services shall not
exceed the greater of twenty percent (20%) of Executive's Annual Base
Salary or Twenty-five Thousand Dollars ($25,000); and
(v) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts
or benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies (such
other amounts and benefits shall be hereinafter referred to as the
"Other Benefits").
(b) DEATH. If the Executive's employment is terminated by
reason of the Executive's death, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this Agreement, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term "Other
Benefits" as utilized in this Section 5(b) shall include, without limitation,
and the Executive's estate and/or beneficiaries shall be entitled to receive,
death benefits at least equal to the most favorable death benefits provided by
the Company and affiliated companies to the estates and beneficiaries of peer
executives of the Company and such affiliated companies under such plans,
programs, practices and policies relating to death benefits, if any, as in
effect with respect to other peer executives and their beneficiaries at any time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive's estate and/or the Executive's beneficiaries, as in
effect on the date of the Executive's death with respect to other peer
executives of the Company and its affiliated companies and their beneficiaries.
(c) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability, this Agreement shall terminate without
further obligations to the Executive, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date Of Termination. With respect to the provision of Other Benefits, the
term "Other Benefits" as utilized in this Section 5(c) shall include, and the
Executive shall be entitled after the Disability Effective Date to receive,
disability and other benefits at least equal to the
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most favorable of those generally provided by the Company and its affiliated
companies to disabled executives and/or their families in accordance with such
plans, programs, practices and policies relating to disability, if any, as in
effect generally with respect to other peer executives and their families at any
time during the 120-day Period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as in effect on
the Disability Effective Date generally with respect to other peer executives of
the Company and its affiliated companies and their families.
(d) CAUSE; OTHER FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (x) his Annual Base Salary through the Date of Termination, (y) the
amount of any compensation previously deferred by the Executive, and (z) Other
Benefits, in each case to the extent theretofore unpaid. If the Executive
voluntarily terminates his employment, excluding a termination for Good Reason,
this Agreement shall terminate without further obligations to the Executive,
other than for Accrued Obligations and the timely payment or provision of Other
Benefits. In such case, all Accrued obligations shall be paid to the Executive
in a lump sum in cash within 30 days of the Date of Termination.
6. NONEXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights or obligations as the Executive may have
under any contract or agreement with the Company or any of its affiliated
companies, including but not limited to, the Agreement for Officers, Zone Vice
Presidents, Key Executives, and National Account Executives. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive under
any plan, policy, practice or program of or any contract or agreement with the
Company or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any
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contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
8. LIMITATION ON COMPENSATION. Notwithstanding anything to the
contrary in this Retention Agreement, if any portion of the compensation under
the Retention Agreement, or under any other agreement with or plan of the
Company (in the aggregate "Total Payments") would constitute an "excess
parachute payment" under Section 280G of the Internal Revenue Code (the "Code")
then the payments to be made to Executive under the Retention Agreement shall be
reduced such that the value of the aggregate Total Payments that Executive is
entitled to receive shall be one dollar ($1) less than the maximum amount which
Executive may receive without becoming subject to the tax imposed by Section
4999 of the Code, or which the Company may pay without loss of deduction under
Section 280G of the Code. The calculation of such potential excise tax
liability, as well as the method in which the compensation reduction is applied,
shall be conducted and determined by the Company's independent accountants whose
determinations shall be binding on all parties.
9. CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it. In no event shall an asserted violation of the
provisions of this Section 9 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
10. SUCCESSORS. (a) This Agreement is personal to the
Executive and shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
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succession had taken place. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
11. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
IF TO THE EXECUTIVE: Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
IF TO THE COMPANY: LESCO, INC.
00000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. XxXxxx,
President and Chief Executive Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communication shall be effective when
actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local and/or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(iii) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
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(f) The Executive and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company is "at
will" and, subject to Section 2(a) hereof, the Executive's employment and this
Agreement may be terminated by either the Executive or the Company at any time
prior to the Effective Date, in which case the Executive shall have no further
rights under this Agreement. From and after the Effective Date, this Agreement
shall supersede any other agreement between the parties with respect to the
subject matter hereof.
(g) In the event that the Executive's employment is with LESCO
Services, Inc., LESCO Services, Inc. shall be substituted for LESCO, Inc. in all
respects hereunder except for Section 3 wherein all references to the term
"Company" shall continue to refer to LESCO, Inc. for purposes of the definition
of Change of Control.
(h) In the event that LESCO Services, Inc. fails to perform
any of its obligations under this Agreement, LESCO, Inc. shall perform such
obligations in the same manner and to the same extent that LESCO Services, Inc.
is required under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf by the
undersigned officer.
LESCO, INC. EXECUTIVE
By: /s/ Xxxxxxx X. XxXxxx /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------- -----------------------------
Title: President and Signature
Chief Executive Officer
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