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Exhibit 10.4(b)
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 17th day of October, 1996,
between Payless Cashways, Inc., an Iowa corporation (the "Company"), and
Xxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Company and the Executive have entered into an employment
agreement dated February 8, 1993 (the "Employment Agreement");
WHEREAS, since the execution of the Employment Agreement, the Executive has
been elected President and Chief Operating Officer of the Company; and
WHEREAS, the parties mutually desire to amend the Employment Agreement;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties agree as follows:
1. Employment and Duties. In the first sentence of Paragraph 1 of
the Employment Agreement, the phrase "a senior vice president" is hereby
deleted and the phrase "President and Chief Operating Officer" is
substituted in lieu thereof.
2. Term of Employment. Paragraph 2 of the Employment Agreement is
hereby deleted in its entirety and the following is substituted in lieu thereof:
"Term of Employment. Unless sooner terminated as hereinafter
provided, the term of this Agreement shall commence on the date
hereof and shall continue (a) through March 1, 1998 in the event
no Change of Control (as defined in Paragraph 6(e) below) occurs,
or (b) through the stated term hereof or one year and sixty (60)
days after the date of a Change of Control, whichever is longer."
3. Compensation. In the third sentence of subparagraph (d),
Paragraph 3, of the Employment Agreement, the word "or" is hereby inserted
immediately preceding the character "(ii)", and the phrase "or (iii) the
Company gives written notice of non-renewal of the term of the Executive's
employment pursuant to Paragraph 2 above," is hereby deleted.
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4. Covenant Not to Compete. In subsection (b) of the first
sentence of Paragraph 5 of the Employment Agreement, the word "or" is
hereby inserted immediately preceding the character "(ii)", and the phrase
"or (iii) the election of the Executive not to renew the terms of the
Executive's employment under this Agreement as provided in Paragraph 2
above," is hereby deleted. In subsection (c) of the first sentence of
Paragraph 5 of the Employment Agreement, the phrase "(including the one
year renewal term)" is hereby deleted and the year "1998" is substituted in
lieu of the year "1997."
5. Termination Severance Benefits.
(a) In subsection (i) of Paragraph 6 (c) of the Employment
Agreement, the phrase "a senior vice president" is hereby deleted
and the phrase "President and Chief Operating Officer" is
substituted in lieu thereof.
(b) In Paragraph 6 (g) of the Employment Agreement, subparagraph
(i) is hereby deleted in its entirely and the following is
substituted in lieu thereof:
"(i) Base Salary. The Company shall continue to
pay to the Executive the Executive's Base
Salary, when and as such Base Salary would have
been paid, during the Severance Period (as
defined in Paragraph 6(j) below)."
(c) In the second sentence of Paragraph 6 (g), subparagraph (ii)
of the Employment Agreement, the phrase "remaining in the term of
this Agreement (excluding the one year renewal term if termination
occurs on or prior to December 1, 1995 and including the one year
renewal term if termination occurs after December 1, 1995)" is
hereby deleted and the phrase "in the Severance Period" is
substituted in lieu thereof.
(d) In Paragraph 6(g), subparagraph (v) of the Employment
Agreement, the phrase "the term specified in Paragraph 2 above
(excluding the one year renewal term if termination of the
Executive's employment occurs on or prior to December 1, 1995 and
including the one year renewal term if termination occurs after
December 1, 1995)" is hereby deleted and the phrase "the Severance
Period" is substituted in lieu thereof.
6. Termination Special Severance Benefits. Paragraph 6(h) is hereby
deleted in its entirety.
7. Severance Period Definition. A new Paragraph 6(j) is hereby inserted
in the Employment Agreement, as follows:
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"Definition of Severance Period. The term
"Severance Period" shall mean: (x) except as
provided in subsection (y) herein, the period
from the date of the termination of the
Executive's employment continuing for the longer
of one year after the date of such termination
or until March 1, 1998; or (y) in the event of a
termination by the Company pursuant to Paragraph
6(d) after a Change of Control or a termination
by the Executive pursuant to Paragraph 6(e), the
period from the date of the termination of the
Executive's employment continuing for two years
after the date of such termination; provided,
however, that in the case of either (x) or (y),
the Severance Period shall continue regardless
of the death or disability of the Executive
subsequent to the date of termination of
employment.
In witness whereof, the parties have executed this Amendment No. 1 as of the day
and year written above.
PAYLESS CASHWAYS, INC. EXECUTIVE
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
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Chairman and Chief Executive Officer Xxxxx X. Xxxxxxx
Approval by the Compensation Committee of the Board of Directors of the
Company is hereby confirmed.
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Chair
