EXHIBIT 10(p) Employment Agreement dated October 21, 1991 and Amendments to
Employment Agreement dated April 16, 1998 and December 28, 1998 between the
Registrant and Xxxxxx X. Xxxxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 21st day of October, 1991,
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 X. Xxxxxxx, a resident of Huntington,
State of New York, hereinafter referred to as "Employee."
WITNESSETH:
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 Vice President of Finance 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 $95,000,
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 such annual or other bonus as
it may determine or as may be applicable in accordance with a bonus or
comparable plan which may be adopted by the Board of Directors. Employee
shall be entitled to a first year minimum bonus of $5,000, provided
Employee is actively employed by Employer at December 27, 1991.
(c) Special Stock Option. Employee shall be granted an option for 12,000 shares
of Employer's common stock at the market price on the day of the grant,
exercisable twenty (20%) percent annually commencing twelve (12) months
from the day of grant.
(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 six (6)
round trip airline tickets, other than first-class, to and from
Greenville/Spartanburg, SC/New York, NY.
(ii) Transportation of household goods and effects, and not more than
two (2) automobiles. This includes transportation of one (1) boat.
(iii) Upon reporting for work Employer agrees to reimburse Employee
for up to six (6) months for the cost of interim living expenses, such
reimbursement to cover lodging only and not food or other expenses. Total
cost of interim living expenses not to exceed $4,000.
(iv) Employer agrees to reimburse Employee for lodging, meals, etc.,
for a maximum of three (3) trips, which includes the actual moving event
and two (2) other trips.
(f) Employer shall pay Employee up to $15,000 of documented expenses for
brokerage fees, closing costs, double mortgage payments and any and all
other related relocation expenses. This payment will be made within fifteen
(15) days after submission of a documented statement.
(g) Payments Upon Termination. In the event Employee is terminated by Employer,
with or without cause, except for fraud, theft or dishonesty, 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. 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. 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 or without cause, Employee will not for a
period of three (3) years 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 Xxxxxxx
Greer, SC
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 AMENDEMENT. 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 modifications 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/ X. X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx, Xx. (Seal)
Xxxxx X. Xxxxxx, Xx.
/s/ Xxxxx X'Xxxxxx Chairman of Board of Directors
As to Employer "EMPLOYER"
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx (Seal)
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X'Xxxxxx
As to Employee "EMPLOYEE"
First Amendment to Employment Agreement Dated October 21, 1991
by and between One Price Clothing Stores, Inc. and Xxxxxx Xxxxxxx
----------------------------------------------------------------
On October 21, 1991, Xxxxxx Xxxxxxx ( "Xx. Xxxxxxx" or "Employee") entered into
an employment contract (the "Agreement") with One Price Clothing Stores, Inc.
("One Price" or "Employer"). Consistent with Employee's recent promotion to the
position of Senior Vice-President, Planning, Allocation and Distribution,
Employer and Employee wish to amend such Agreement as follows:
Section 4(a) of the Agreement, providing for "Compensation and Benefits" is
hereby amended to provide for a base salary of $200,000.
The Agreement currently provides for payments upon termination under the first
sentence in section 4. (g) as follows:
"In the event Employee is terminated by Employer, with or without cause,
except for fraud, theft, dishonesty, 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."
The foregoing section 4. (g) is hereby amended by adding the following sentence
immediately after such first sentence in Section 4.
(g) of the Agreement:
"In addition, provided Employee has diligently pursued another position
following his involuntary termination, in the event Employee has not taken a
position with another entity (including a position with a company, or
partnership, or substantially full-time self employment) by the end of such 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, and Employee is
continuing to diligently pursue another position. Employer shall be entitled to
receive from Employee, upon request, reasonable proof of such diligent effort(s)
to pursue another position, failing which, such additional six months of salary
shall cease."
In addition to the forgoing amendments, the three year restriction of Section 6.
of the Agreement, "NON-COMPETITION" is hereby amended by adding the following
language to clarify that:
"Upon termination, whether voluntary or involuntary, Employee shall not
engage in 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 termination. Ceiling price
points and single price concepts shall be included."
The Agreement is further amended by adding the following new Section 17, which
shall provide:
"In the event of involuntary 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."
Except as provided for herein by the foregoing amendment, the Agreement shall
continue unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this
16th day of April, 1998.
One Price Clothing Stores Xxxxxx Xxxxxxx
By:_/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxx
Xxxxx X. Xxxxxx "EMPLOYEE"
President and C.E.O.
"EMPLOYER"
Amendment to Employment Agreement Dated October 21, 1991,
as Previously Amended April 16, 1998
Reference is made to the Employment Agreement dated as of, October 21,1991, as
amended on February 4, 1997 ("Agreement") by and between One Price Clothing
Stores, Inc. ("Employer") and Xxxxxx X. Xxxxxxx ("Employee"). The Agreement is
hereby amended to add the following new provisions relating to termination of
employment by Employee for "good reason" following a "Change of Control" (as
hereinafter defined).
1. The following new Section 4 (h) is add to the Agreement:
4 (h). Change of Control - In the event the Employee's employment with the
Company is terminated by the Employer without Cause, or for "Good Reason" by the
Employee, within 24 months after a "Change of Control" of Employer (an
"Employment Event"), then Employer shall pay to Employee, in one lump sum, an
amount equal to eighteen (18) months severance pay rather than the maximum of
twelve (12) months severance pay currently provided for in the Agreement.
Termination for "Good Reason" shall be deemed to have occurred, and the Employee
shall be entitled to the benefits of this provision, if the Employee voluntarily
terminates his employment after 30 days written notice to Employer and following
the occurrence of any of the following events, provided a "Change of Control"
has occurred: (i) the assignment to the Employee of any duties inconsistent with
the highest position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities attained by the Employee
during the period of his employment with the Employer or any action by the
Employer which results in a material diminishment in such position, authority,
duties or responsibilities as were in effect immediately prior to the Change in
Control; (ii) a decrease in the Employee's compensation (including base salary,
bonus or fringe benefits); (iii) relocation by Employer of the Employee more
than 50 miles outside of the Greenville /Spartanburg area of South Carolina; or,
(iv) failure of any successor of the Employer to comply with this Agreement. In
consideration for the benefits conferred to Employee under this provision, in
the absence of an Employment Event Employee agrees to continue his employment,
following a Change of Control, for a minimum period of six months.
In addition, should a "Change of Control" occur, all stock options granted by
Employer to Employee, and not yet expired as of the date of such "Change of
Control," shall become immediately exercisable. In such event, the normal
expiration date shall apply to such options, provided, however, that Employee
shall have 90 days to exercise such options in the event of termination
following an Employment Event.
For purposes hereof, "Change of Control" shall be deemed to have occurred
following either of the following two events:
(i) A change in the Board of Directors of the Company, with the result that the
members of the Board, as elected by the stockholders of the Company on June 10,
1998 ("Incumbent Director"), no longer constitute a majority of such Board,
provided that any person who becomes a director and whose appointment or
election was supported by a Majority of the Incumbent Director shall be
considered an Incumbent Director for purposes hereof, or,
(ii) The occurrence of Section II (a)(ii) Event, as defined in the Shareholder
Rights Agreement, dated November 3, 1994, between Wachovia Bank of North
Carolina, N.A., as Rights Agent, and Employer ("Rights Agreement"), provided,
however, that for these purposes the applicable percentage for a Change of
Control to arise from a change in stock ownership shall be 40% and 20% as
provided for in the Rights Agreement.
This Amendment shall be binding upon any successor to the Company.
Except as provided for herein by the foregoing amendment, the Agreement shall
continue unchanged in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this
28 day of December, 1998.
One Price Clothing Stores, Inc. Xxxxxx X. Xxxxxxx
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
Title: President & CEO "EMPLOYEE"
