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AMENDMENT NO. 1 TO EXECUTIVE CHANGE-IN-CONTROL AGREEMENT
THIS AGREEMENT, made and entered into as of August 20, 1997, between
Payless Cashways, Inc., an Iowa corporation (the "Company"), and Xxxxxxx X.
Xxxxxx (the "Executive").
WHEREAS, the Company and the Executive have entered into an executive
change-in-control agreement dated June 26, 1997 (the "Change-in-Control
Agreement");
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties agree as follows:
1. Term. Section 1 of the Change-in-Control Agreement is hereby amended by
deleting the language in Section 1 beginning "provided, however," through the
end of Section 1.
2. Severance Benefits.
(a) Section 4(d), subparagraphs 2(i) and (ii) and 3 of the
Change-in-Control Agreement are hereby deleted in their entirety and the
following is substituted in lieu thereof:
(i) one year's annual Base Salary. For purposes of this section,
"Base Salary" shall mean the salary in effect on July 21,
1997.
(3) the Corporation will arrange to provide you, at the
Corporation's expense, with benefits under the Corporation's
Hospital/Medical Plan, and all group Life Insurance Plans, and
any other Welfare Plans then existing, or benefits
substantially similar to the benefits you were receiving
immediately prior to the Notice of Termination under the named
plans, for a period of one year, such benefits specifically
being in addition to any and all rights you may have under the
plan and under the Consolidated Omnibus Budget Reconciliation
Act of 1985 (COBRA); but benefits otherwise receivable by you
pursuant to this Subsection (3) shall be reduced to the extent
comparable benefits are actually received by you from a
subsequent employer during the such period following your
termination, and any such benefits actually received by you
shall be reported to the Corporation.
(b) A new Paragraph 13 is hereby inserted in the Change-in-Control
Agreement as follows:
"(a) 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.
(b) Retention Payments Excluded From Severance. Any retention payments
paid pursuant to Section 13(a) above shall be excluded from the
calculation of severance payments provided under other Sections of this
Agreement.
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(c) 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 Section 14 is hereby inserted in the
Change-in-Control Agreement as follows:
"Waiver of Claims. The Executive shall execute a waiver of claims under
the Change-in- Control Agreement, as the Change-in-Control Agreement
existed prior to this Amendment No.1, in the form attached hereto as
Exhibit A."
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Change-in-Control Agreement as of the day and year written above.
PAYLESS CASHWAYS, INC. EXECUTIVE
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
By:------------------------------------ ----------------------------
Chairman and Chief Executive Officer Xxxxxxx X. Xxxxxx
Approval by the Compensation Committee of the Board of Directors of the Company
is hereby confirmed.
/s/ Xxxx X. Xxxxxxxxx, Xx.
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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 Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company and the Executive have entered into an executive
change-in-control agreement dated June 26, 1997 (the "Change-in-Control
Agreement");
WHEREAS, the Company and the Executive have amended the
Change-in-Control Agreement by entering into Amendment No. 1 to
Change-in-Control Agreement dated as of August 20, 1997 ("Amendment No. 1");
WHEREAS, one of the terms and conditions of Amendment No. 1 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. 1, 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 Change-in-Control Agreement, to the extent the
Change-in-Control Agreement is inconsistent with the terms of Amendment No. 1.
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 Change-in-Control Agreement, to the
extent not inconsistent with terms of Amendment No. 1.
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. 1, 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/ Xxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
By:------------------------------------ -----------------------------
Chairman and Chief Executive Officer Xxxxxxx X. Xxxxxx
Approval by the Compensation Committee of the Board of Directors of the Company
is hereby confirmed.
/s/ Xxxx X. Xxxxxxxxx, Xx.
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