ONE PRICE CLOTHING STORES INC. AND SUBSIDIARIES
EXHIBIT 10-- Employment Agreement dated November 10, 1997 between the Registrant
and X. X. Xxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 10th day of November, 1997,
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 Xxxxxxxx X. Xxxx, currently a resident of
Charlotte,State of North Carolina, 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 agree 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
$215,000, 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
20,000 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 full-time 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 moving
expenses and interim living and travel expenses as set forth in the attachment
hereto, entitled "OFFER OF EMPLOYMENT";
(f) Employer shall pay Employee up to a total of $(20,000) for: (i)
documented expenses for brokerage fees (up to 6%),and any similar expenses
related to the sale of Employee's current home and (ii) loan origination fees
(up to 1%) for the purchase of a new one. 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 or without
cause, except for fraud, theft, dishonesty or criminal intent, Employer shall
continue Employee's salary following Employee's termination for six (6) 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 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.
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 or 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 "Off-price" retail apparel
business whose price points and/or customer base could reasonably be considered
in competition with the business of Employer, either now or at the time of such
termination. Ceiling price points and single price point concepts shall be
included. 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: Xxxxxxxx Xxxx Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, 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 expressly confirms, 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. Employee further represents and warrants that, to
his knowledge, no litigation is pending or has been threatened against Employee
or Employer as a result of Employee accepting a position with Employer. Employee
agrees to defend and indemnify Employer against any and all claims by third
parties against Employer arising out of Employee's prior employment.
11. Xxxxxxx.Xx the event of termination, and in consideration for Employer's
agreements hereunder, Employee agrees to execute a release in favor of Employer
in form and substance reasonably satisfactory to Employer.
12. 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.
13. ENTIRE AGREEMENT, MODIFICATION OR AMENDMENT. 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.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
15. 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.
16. 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.
17. 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 X'Xxxxxx /s/ By: Xxxxx X. Xxxxxx (SEAL)
Xxxxx X. Xxxxxx
__________________________ President & CEO
As to Employer
"EMPLOYER"
/s/ Xxxx DuVze Nepa /s/ Xxxxxxxx Xxxx Xxxx (SEAL)
Xxxxxxxx Xxxx Xxxx
Senior Vice President,
Merchandising
--------------------------
As to Employee "EMPLOYEE"
