"EMPLOYER"
EXHIBIT 10(q) Employment Agreement dated November 10, 1997 and amendments to
Employment Agreement dated April 16, 1998 and January 14, 1999 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
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
On November 10, 1997 Xxxxxxxxx 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"
Amendment to Employment Agreement Dated November 10, 1997, as Previously
Amended as of April 16, 1998
Reference is made to the Employment Agreement dated as of November 10,
1997, as previously amended as of April 16, 1998 ("Agreement") by and between
One Price Clothing Stores, Inc. ("Employer") and Xxxxxxxx X. Xxxx ("Employee").
The Agreement is hereby amended to add the following provisions relating to (i)
termination of employment by Employee for "good reason" following a "Change of
Control" (as hereinafter defined); (ii) amendment of the Agreement to provide
for a term agreement through January 31, 2002 in lieu of the existing Section 2
employment at will provision; and, (iii) addition of a provision calling for a
change in compensation to be effective February 1, 1999.
First Amendment - The following new Section 4 (h) is added 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 of
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:
(iii) 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 Directors"), 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 Directors shall be considered an
Incumbent Director for purposes hereof; or,
(iv) The occurrence of a Section 11 (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 not 20% as
provided for in the Rights Agreement.
Second Amendment- Section 2 of the Agreement is hereby deleted in its
entirety and the following provision inserted in its place:
2. Term Agreement. Effective as of the date hereof, Employee's employment with
Employer shall continue through January 31, 2002, unless terminated as provided
for in the Agreement. In the event Employee elects to leave voluntarily during
the period of such term employment (or any extension thereof), Employee agrees
to give Employer a minimum of 90 days notice prior to leaving and agrees to work
closely with Employer in such event to assist, as requested, in the recruitment
and transition of a new General Merchandise Manager.
Third Amendment - The following Section 18 is added to the Agreement.
18. It is understood and agreed that Employee shall receive a salary
adjustment which shall be effective February 1, 1999.
Except as provided for herein by the foregoing amendments, the Agreement shall
continue unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the 14
day of January, 1999.
One Price Clothing Stores, Inc. Xxxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxx
By: Xxxxx X. Xxxxxx "EMPLOYEE"
Title: President & CEO
"EMPLOYER"
