ONE PRICE CLOTHING STORES, INC. AND SUBSIDIARIES
EXHIBIT 10(q) Employment Agreement dated November 10, 1997 and Amendment to Employment Agreement
dated April 16, 1998 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. Release. In 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
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As to Employee "EMPLOYEE"
First Amendment to Employment Agreement Dated November 10, 1997
by and between One Price Clothing Stores, Inc. and X. X. Xxxx
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On November 10, 1997 Xxxxxxxx X. Xxxx ( "Xx. Xxxx" or "Employee") entered into
an employment contract (the "Agreement") with One Price Clothing Stores, Inc.
("One Price" or "Employer"). Employer and Employee wish to amend such Agreement
as follows:
The Agreement currently provides for payments upon termination under the first
sentence in section 4. (g) (i) as follows:
"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)
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 provision is hereby amended by adding the following sentence
immediately after such first sentence in Section 4 (g) (i) 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 Company 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 pursue diligently
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".
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 Xxxxxxxx X. Xxxx
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxx
Xxxxx X. Xxxxxx "EMPLOYEE"
President and C.E.O.
"EMPLOYER"
