ONE PRICE CLOTHING STORES, INC. AND SUBSIDIARIES
EXHIBIT 10(r) Employment Agreement dated October 21, 1991 and Amendment to Employment Agreement dated
April 16, 1998 between the Registrant and Xxxxxx X. Xxxxxxx.
AGREEMENT BETWEEN
ONE PRICE CLOTHING STORES, INC.
AND
EMPLOYEE
THIS AGREEMENT made and entered into duplicate original this 21st day
of October, 1991, by and between ONE PRICE CLOTHING STORES, INC., a Delaware
Corporation with its principal place of business in the County of Spartanburg,
State of South Carolina, (hereinafter referred to as "Employer") and Xxxxxx X.
Xxxxxxx resident of the County Suffolk, State of New York, Xxxxxx X. Xxxxxxx
(hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, Employee is or is to become employed by Employer at the will of each
under a written or oral employment agreement whereunder Employee will perform
certain services for Employer in connection with its business, and
WHEREAS, in consideration of such employment, the Employee has agreed with
the Employer as hereunder set forth.
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained and the benefits which have and will inure to each of the parties
hereto and as an inducement to Employer to employ and to continue to employ
Employee, the parties hereto do agree as follows:
(1) Employer will employ and will continue to employ Employee, and
Employee will be and will continue to be in the employment of
Employer under the aforesaid employment agreement as the same
may hereafter be modified and amended in writing from time to
time by mutual agreement between Employer and Employee until
Employee's employment is terminated by either party, such
termination to be at the will of either party at any time.
(2) Upon such termination of Employee's employment with Employer,
whether voluntary or involuntary, and whether with or without
cause, Employee shall not be prohibited from engaging in,
directly or indirectly, alone or jointly with another person
or corporation as agent, employee, manager, proprietor,
stockholder, partner, or otherwise, any type of retail
merchandising business offering women's apparel for sale.
Employee agrees not to employ or in any manner seek to employ
or cause to be employed any other employee of employer in any
such retail merchandising business for a period of one year
following Employee's termination of employment or while
Employee shall be employed by Employer.
(3) Employee acknowledges that during his employment he will have
access to confidential information belonging to and considered
to be the property of 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 merchandising business in which Employer
is engaged, including but not limited to information
concerning Employer's suppliers, involving 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 expansion plan; information
concerning real estate leasing strategy and plans; all pricing
information relating to merchandise offered for sale by
Employer; customers' list and all information dealing with
customer surveys or profiles or customers' needs or
preference; all date 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 without prior express written consent of
Employer, either during their employment or after termination
of 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 affair of Employer.
(4) This agreement shall be governed and controlled by the laws of
the State of South Carolina and any controversy arising
hereunder shall be resolved in the Courts of the State of
South Carolina. The Employee, by the execution of this
agreement, submits himself to the jurisdiction of the Courts
of the State of South Carolina.
(5) The invalidity or unenforceability of any provision of this
agreement shall in no way affect the validity or
enforceability of any other provision.
(6) All pronouns and references to gender and any variation
thereof used in this agreement shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the context
may require.
(7) This agreement shall be binding upon and inure to the benefit
of the parties hereto, their heirs, executors, administrators,
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the year and day first above written.
Signed, Sealed and Delivered ONE PRICE CLOTHING STORES, INC.
In the presence of:
/s/ Xxxxxxx X. Xxxxxx By: /s/ X. X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X'Xxxxxx Secretary/Treasurer
As to Employer
/s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxx
As to Employee
First Amendment to Employment Agreement Dated October 21, 1991
by and between One Price Clothing Stores, Inc. and Xxxxxx Xxxxxxx
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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"
