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Exhibit 10.5
AMENDMENT NO. 1 TO AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
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This Amendment No. 1 to Amended and Restated Employment Agreement is
executed as of May 28, 1998 by R. XXXXX XXXXX (the "Executive") and D.I.Y. HOME
WAREHOUSE, INC., an Ohio corporation (the "Company").
RECITALS:
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A. Executive and the Company are parties to a certain Amended and
Restated Employment Agreement dated as of January 1, 1995 (the "Agreement").
B. The parties desire to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Section 6(d) of the Agreement is hereby amended to read, in its
entirety, as follows:
(d) If Executive's employment is terminated pursuant to the
provisions of subsection 5(a)(vi) above, and Executive was
not offered employment after the change of control of the
Company at substantially the same compensation and contract
terms for the performance of substantially the same
responsibilities as is set forth in this Agreement (other
than corporate title), in addition to paying Executive his
Earned Compensation, the Company shall pay the Executive an
additional amount per month, as severance pay, equal to
one-twelfth (1/12th) of the Executive's current base salary
for each month during the Severance Period. In addition,
during the Severance Period, the Company shall provide
Executive with the same medical and insurance benefits, but
no other fringe benefits, which it provided to Executive
immediately prior to the actual termination date of this
Agreement. The foregoing notwithstanding, the Executive shall
use his good faith efforts to obtain reasonable replacement
employment from and after such termination and any
compensation and medical and insurance benefits received by
the Executive from such replacement employing during the
Severance Period shall reduce the amount of severance pay and
medical and insurance benefits due to Executive from the
Company hereunder.
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2. As modified above, the Agreement shall continue in full force and
effect and is hereby ratified and confirmed. This Amendment No. 1 may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one in the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
as of the date set forth above.
/s/ R. Xxxxx Xxxxx
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R. Xxxxx Xxxxx
D.I.Y. HOME WAREHOUSE, INC.,
an Ohio corporation
By: /s/ Xxxx x. Xxx
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Xxxx X. Xxx
Its: Chairman
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