EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 12th day of December, 1995,
by and between One Price Clothing Stores, Inc., a Delaware corporation with its
principal place of business in Spartanburg County, South Carolina, hereinafter
referred to as "Employer," and Xxxxxx Xxxxxx, a resident of Dallas, State of
Texas, hereinafter referred to as "Employee."
W I T N E S S E T H :
For and in consideration of the mutual covenants and promises of the
parties hereto and the benefits inuring to the parties hereto, Employer and
Employee agrees as follows:
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement,
employer employs Employee as its Senior Vice President, Merchandising and
Employee accepts such employment with Employer. The employment hereunder shall
commence on the date Employee reports for full time work, and shall continue
until terminated as hereinafter provided.
2. TERMINATION. The employment hereunder shall terminate at the will
of either party at any time, with or without cause, or upon the mutual agreement
of the parties hereto.
3. DUTIES OF EMPLOYEE. Employee shall serve Employer faithfully
and to the best of his ability. Employee shall devote his full time and efforts
to his duties as an employee of Employer.
4. COMPENSATION AND BENEFITS.
(a) Salary. For all services rendered to Employer under this
Agreement, Employer shall pay Employee an annual base salary of not less than
$250,000, subject to annual review, payable in bi-weekly installments in
accordance with the usual payroll practice of Employer, less all legally
required deductions.
(b) Bonus. In addition to the above salary, the Board of
Directors of Employer, in its sole discretion, may award to Employee an annual
bonus in accordance with a bonus plan that has been adopted by the Board of
Directors.
(c) Special Stock Option. Employee shall be granted an option
for 30,000 shares of Employer's common stock at the market price on the day of
grant, exercisable twenty (20%) percent annually commencing twelve (12) months
from the day of grant. This option shall be granted on the day Employee reports
for fulltime work.
(d) Other Benefits.
(i) During the term of his employment, Employee
shall be entitled to participate in all employee benefits as are customarily
provided to its officers by Employer, and to participate in such other
employee benefits as may from time to time be instituted by Employer's Board of
Directors.
(ii) Employee shall also be entitled to
reimbursement of all reasonable hotel, travel, entertainment and other business
expenses actually incurred by Employee in the course of Employee's employment
upon submission to Employer of satisfactory documentation thereof.
(e) Moving Expenses. Employer shall reimburse Employee
for:
(i) Employer agrees to reimburse Employee for
air travel up to (TBD) round trip airline tickets, other than first-class, to
and from Greenville/Spartanburg, SC/Dallas, TX.
(ii) Transportation of household goods and
effects, and not more than two (2) automobiles.
(iii) Upon reporting for work Employer agrees to
reimburse Employee for up to (TBD) for the cost of interim living expenses,
such reimbursement to cover lodging only.
(f) Employer shall pay Employee up to $60,000 of documented
expenses for brokerage fees, closing costs, double mortgage payments and any
similar expenses related to the sale of Employee's current home and purchase of
a new one (excluding loan discount points, if any). This payment will be made
upon presentation of documentation on or after the first day of employment.
(g) Payments Upon Termination.
(i) In the event Employee is terminated by
Employer, with our without cause, except for fraud, theft, dishonesty or
criminal intent, Employer shall continue Employee's salary following Employee's
termination for six (6) additional months at the annual base salary in effect
at the date of Employee's termination, payable in accordance with Employer's
usual payroll practices.
(ii) In the even Employee has not taken a
position with another company by the end of six months from the date of
Employee's involuntary termination, Employer shall pay to Employee up to an
additional six (6) months salary continuation on
a bi-weekly basis so long as other employment has not begun.
(iii) In the event Employee voluntarily terminates
his employment with Employer, he shall be entitled to no additional payment
upon such termination other than any then accrued but unpaid salary, vacation
pay, or other normal reimbursement items.
(iv) In the event Employee shall voluntarily
terminate his employment with Employer prior to his first anniversary of
employment, Employee shall reimburse Employer fifty (50%) percent of
payments received for moving expenses and relocation expense reimbursement
set forth in paragraph (e) and paragraph (f)
above.
5. CONFIDENTIAL INFORMATION. Employee acknowledges that during his
employment he will have access to confidential information belonging to the
Employer. Such confidential information shall consist of all information
disclosed to Employee as a result of employment by Employer not generally known
in the retail business in which Employer is engaged including information
concerning Employer's suppliers, including the costs, quantities and types of
goods supplied, and the identity of such suppliers; information concerning the
Employer's marketing and/or sales strategy or plans; real estate strategy and
expansion plans; all pricing information relating to merchandise offered for
sale by Employer; customers' list and all information dealing with customers'
needs or preferences; all data processing information; all financial information
including financial statements, financing plans and forecasts, and any and all
information designated or marked as confidential. Employee will not use or
disclose, or otherwise make available, such confidential information to any
other person or entity without prior express written consent of Employer, either
during or following the termination of Employee's employment. Upon termination
of employment, Employee shall turn over to Employer all property then in his
possession or custody belonging to Employer and shall not retain any copies or
reproductions of correspondence, memoranda, reports, notebooks, drawings,
photographs, or other documents relating in any way to the affairs of Employer.
6. NON-COMPETITION.
(a) Upon termination of Employee's employment with Employer,
whether voluntary or involuntary and whether with our without cause, Employee
will not for a period of one (1) year from date of such termination conduct or
engage in, directly or indirectly, alone or jointly, with any other person or
corporation as agent, consultant, employee, manager, purchaser, proprietor,
stockholder, co-partner, or otherwise, any type of retail apparel business which
uses the one price concept or a substantially similar concept, such as a ceiling
price point. This restriction applies to the continental United States.
(b) Employee agrees not to employ or cause to be employed any
other employee of Employer for a period of three (3) years after Employee's
termination of employment. This restriction applies to any type of business
which Employee may enter.
7. NOTICES. All notices, consents, changes of address and other
communications (hereinafter referred to as "Notice(s)") required or permitted to
be made under the terms of this Agreement shall be in writing and shall be (i)
personally delivered by an agent of the relevant Party, or (ii) transmitted by
postage prepaid, certified or registered mail:
To Employer: One Price Clothing Stores, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxx, XX 00000
To Employee: Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
8. WAIVER OF BREACH. The waiver of Employer of a
breach by Employee of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by Employee. No waiver shall be
valid unless in writing and signed by any authorized officer of Employer.
9. ASSIGNMENT. Employee acknowledges that the
services to be rendered by Employee are unique and personal. Accordingly,
Employee may not assign any of Employee's rights or delegate any of Employee's
duties or obligations under this Agreement. The rights and obligations of
Employer under this Agreement shall inure to the benefit of and all be binding
upon the Employer, and its successors and assigns.
10. REPRESENTATIONS AND WARRANTIES. Employee represents and
warrants to Employer that he is under no obligation to or bound by any contract
with any person, corporation or other entity which would prohibit or in any way
interfere with the performance of his duties and obligations to Employer under
this Agreement.
11. SEVERABILITY. If any provision of this Agreement as applied
to either party or to any circumstance shall be adjudged by a court to be
invalid or unenforceable, the same shall in no way affect any other provision of
this Agreement, or the application of each provision to any other fact or
circumstances.
12. ENTIRE AGREEMENT, MODIFICATION OR AMENDMENTS. This Agreement
constitutes the entire agreement of the parties with respect to its subject
matter and supersedes all prior oral or written agreements. This Agreement may
be modified or amended from time to time by the mutual agreement of the parties
hereto. No modification or amendment of this Agreement shall be binding upon
either party unless it is in writing and executed by the party sought to be
charged.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
14. CAPTIONS. The captions contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of South Carolina,
without giving effect to South Carolina's rules of conflicts of law, and
regardless of the place or places of its physical execution and performance.
16. ENFORCEMENT. This Agreement may only be enforced in a court of
competent jurisdiction in Spartanburg County, South Carolina. Employee agrees to
submit to the jurisdiction of a court of competent jurisdiction in Spartanburg
County, South Carolina, whether or not then residing in South Carolina. The
prevailing party shall be entitled to recover from the other party the cost of
any court action, including reasonable attorneys fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Witnesses: One Price Clothing Stores, Inc.
/s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx, Xx. (Seal)
Xxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx Chairman of Board of Directors
As to Employer
"EMPLOYER"
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx Xxxxxx (Seal)
Xxxxxx Xxxxxx, Senior Vice President,
/s/ Xxxxxx Xxxx Merchandising
As to Employee "EMPLOYEE"
