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EXHIBIT 10.4
MAZEL STORES, INC.
AMENDMENT TO EMPLOYMENT AGREEMENT
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THIS AGREEMENT is entered into as of October __, 1999, by and
among Mazel Stores, Inc., an Ohio corporation (the "COMPANY"), both in its own
capacity and as successor-in-interest to Mazel Company L.P., a Delaware limited
partnership (the "PARTNERSHIP"), pursuant to the Capital Contribution Agreement,
dated November 20, 1996, between the Company and the Partnership (the "CAPITAL
CONTRIBUTION AGREEMENT"), and Xxxxx Xxxxx (the "EMPLOYEE").
WHEREAS, the Company and the Employee desire to amend the terms of the
Amended and Restated Employment Agreement made among the Company, the
Partnership and the Employee (collectively the "PARTIES," and individually a
"PARTY"), as of September 30, 1996 (the "EMPLOYMENT AGREEMENT"), to remove
certain superfluous language contained in the definition of "Term" in Section 1
of the Employment Agreement;
WHEREAS, Section 9.7 of the Employment Agreement provides that the
Employment Agreement may be amended by a written instrument signed by the
Parties;
WHEREAS, the Company is successor-in-interest to the Partnership for
purposes of Section 9.9 of the Employment Agreement by reason of the transfer of
all the Partnership's assets to the Company and the Company's assumption of all
the Partnership's obligations and liabilities pursuant to the Capital
Contribution Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the Company and the Employee, agree as follows:
1. Section 1 of the Employment Agreement shall be deleted and replaced
in its entirety by the following:
"1 TERM. The Company hereby employs the Employee, and the Employee
hereby accepts such employment, for a term commencing on the effective date
of the Initial Public Offering (the "Effective Date") and ending on October
31, 2000, unless sooner terminated in accordance with the provisions of
Section 4 or Section 5 (the "Term")."
The Employment Agreement remains in effect in all respects except as modified by
this paragraph 1.
2. SUCCESSORS AND ASSIGNS; BINDING EFFECT. This Agreement, and the
Employee's rights and obligations hereunder, may not be assigned by the
Employee; any purported assignment by the Employee in violation hereof shall be
null and void. This Agreement and the Company's rights and obligations hereunder
shall be deemed assigned to any person to which the Company assigns the
Employment Agreement pursuant to Section 9.9 of the Employment Agreement. This
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Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, permitted assigns, heirs, executors and legal
representatives.
3. MODIFICATION OR WAIVER. No amendment, modification or waiver of this
Agreement shall be binding or effective for any purpose unless it is made in a
writing signed by the Party against whom enforcement of such amendment,
modification or waiver is sought. No course of dealing between the Parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of the Parties in the
exercise of any of their respective rights or remedies shall operate as a waiver
thereof, and no single or partial exercise by any Party of any such right or
remedy shall preclude other or further exercises thereof. A waiver of right or
remedy on any one occasion shall not be construed as a bar to or waiver of any
such right or remedy on any other occasion.
4. EFFECTIVENESS. This Agreement shall be effective as of September 30,
1996.
5. AMENDMENT. This Agreement may be amended only by a written
instrument signed by the parties hereto.
6. GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF
THE STATE OF OHIO OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF OHIO. IN FURTHERANCE OF THE
FOREGOING, THE INTERNAL LAW OF THE STATE OF OHIO SHALL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT EVEN THOUGH UNDER THAT
JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF
SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
7. COMPANY AND THE EMPLOYEE'S REPRESENTATIONS. The Company and the
Employee each represent and warrant to the other that (i) the execution,
delivery and performance of this Agreement does not and shall not conflict with,
or result in the breach of or violation of, any other agreement, instrument,
order, judgment or decree to which he is a party or by which he is bound, (ii)
he is not a party to or bound by any employment agreement, noncompete agreement
or confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of the Parties, enforceable in accordance with
its terms.
8. CAPTIONS. The captions used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and shall not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement shall be enforced and construed
as if no caption had been used in this Agreement.
9. COUNTERPARTS. This Agreement may be executed in counterparts, any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same instrument.
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10. SUPERSEDENCE. This Agreement and the Employment Agreement
constitute the entire agreement of the parties with respect to the matters
contemplated hereby.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
MAZEL STORES, INC., both in its own capacity
and as successor-in-interest to Mazel Company L.P.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Its: Director
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
