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AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of August 20, 1997, between
Payless Cashways, Inc., an Iowa corporation (the "Company"), and G. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Company and the Executive have entered into an employment
agreement dated October 17, 1996 (the "Employment Agreement"), as amended by
Amendment No. 1 to Employment Agreement dated June 30, 1997 ("Amendment No. 1")
(the Employment Agreement, as amended by Amendment No. 1, is referred to herein
as the "Amended Employment Agreement");
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties agree as follows:
1. Term of Employment. Paragraph 2 of the Amended Employment Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
"Term of Employment. Unless sooner terminated as herein after
provided, the term of this Agreement shall commence on the date hereof
and shall continue through March 1, 1999."
2. Severance Benefits.
(a) Paragraph 6(e) of the Amended Employment Agreement, and all
references to Paragraph 6(e) in the Amended Employment Agreement, are hereby
deleted in their entirety.
(b) A new sentence is hereby inserted at the end of Paragraph 6(g)(iii)
of the Amended Employment Agreement as follows:
"Notwithstanding the foregoing, the Executive shall not be entitled to
receive such benefits to the extent that the Executive obtains other
employment that provides comparable benefits during the 12 months
following termination of employment."
(c) Paragraph 6(i) of the Amended Employment Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
"Definition of Severance Period. The term "Severance Period" shall mean
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, 1999; provided, however, that the
Severance Period shall continue regardless of the death or disability
of the Executive subsequent to the date of termination of employment."
(d) A new Paragraph 6(j) is hereby inserted in the Amended Employment
Agreement as follows:
"Participation in Retention Plan. The Executive shall participate in
the key employee retention plan adopted by the Company as of August 20,
1997, subject to the terms and conditions of such plan; provided,
however, that if the Executive is entitled to receive a retention bonus
for a fiscal year, the Executive shall be entitled to receive any
unpaid portion of the bonus regardless of any termination of employment
by the Company without Cause or by the Executive for Good Reason prior
to the date the unpaid portion of the bonus would be payable under the
retention plan."
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(e) A new Paragraph 6(k) is hereby inserted in the Amended Employment
Agreement as follows:
"Retention Payments Excluded From Severance. Any retention payments
paid pursuant to Paragraph 6(j) above shall be excluded from the
calculation of severance payments provided under other Paragraphs of
this Agreement."
(f) A new Paragraph 6(l) is hereby inserted in the Amended Employment
Agreement as follows:
"Lump Sum Payment. Notwithstanding any other provision of this
Agreement, any Base Salary, Incentive Compensation, or Retention
Payment payable to the Executive upon termination of employment shall
be paid in a lump sum within fifteen (15) days of the termination of
employment."
3. Waiver of Claims. A new Paragraph 13 is hereby inserted in the Amended
Employment Agreement as follows:
"Waiver of Claims. The Executive shall execute a waiver of claims under
the Employment Agreement, as the Employment Agreement existed prior to
this Amendment No.2, in the form attached hereto as Exhibit A."
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to
Employment Agreement as of the day and year written above.
PAYLESS CASHWAYS, INC. EXECUTIVE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:------------------------------------- ----------------------------
Chairman and Chief Executive Officer G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Approval by the Compensation Committee of the Board of Directors of the Company
is hereby confirmed.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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WAIVER OF CLAIMS
THIS WAIVER OF CLAIMS ("Waiver") is made and entered into as of August
20, 1997, between Payless Cashways, Inc., an Iowa corporation (the "Company"),
and G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Company and the Executive have entered into an employment
agreement dated October 17, 1996 (the "Employment Agreement"), as amended by
Amendment No. 1 to Employment Agreement dated June 30, 1997 ("Amendment No. 1");
WHEREAS, the Company and the Executive have amended the Employment
Agreement and Amendment No. 1 by entering into Amendment No. 2 to Employment
Agreement dated as of August 20, 1997 ("Amendment No. 2"); WHEREAS, one of the
terms and conditions of Amendment No. 2 is that the Company and the Executive
enter into this Waiver.
NOW, THEREFORE, in consideration of these premises and in consideration
of the Company and the Executive entering into Amendment No. 2, and other good
and valuable consideration, the parties agree as follows:
1. The Executive, and anyone claiming through or on behalf of the
Executive, waives any and all claims the Executive may have or may have had
against the Company and the Company's affiliates, their successors and assigns,
and the Company's past and present employees, officers, directors and agents, or
any of them, under the Employment Agreement as amended by Amendment No. 1, to
the extent the Employment Agreement, as amended by Amendment No. 1, is
inconsistent with the terms of Amendment No. 2.
2. Nothing under this Agreement is intended to waive, terminate or
otherwise affect the Executive's eligibility for or receipt of any rights or
benefits the Executive may have under the Employment Agreement, as amended by
Amendment No. 1, to the extent not inconsistent with terms of Amendment No. 2.
3. The Executive expressly acknowledges that he was advised to consult
with his attorney before signing this Waiver and that he has had the opportunity
to be advised by independent legal counsel before signing. The Executive further
acknowledges that he has completely read and understands every provision of this
Waiver and of Amendment No. 2, and that he has executed this Waiver voluntarily
and of his own free will.
4. This Waiver shall be interpreted and enforced under the laws of the
State of Missouri.
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IN WITNESS WHEREOF, the parties have executed this Waiver as of the day
and year written above.
PAYLESS CASHWAYS, INC. EXECUTIVE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:------------------------------------ -----------------------------
Chairman and Chief Executive Officer G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Approval by the Compensation Committee of the Board of Directors of the Company
is hereby confirmed.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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