First Amendment to Employment Agreement Dated
January 16, 1995 (the "Agreement") by and
between One Price Clothing Stores, Inc.
("Employer") and Xxxxxxx X. Xxxxxxx ("Employee")
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The Agreement is hereby amended by eliminating Section 4. (g)(ii) of the
Agreement in its entirety and replacing it with the following language:
(ii) In the event Employee has not taken a position with another Company by
the end of six months from the date of Employee's involuntary termination,
Employer shall pay to Employee up to an additional six 96) months salary
continuation on a bi-weekly basis as long as other employment has not begun.
Except as provided for herein by the foregoing amendment, the Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 20th
day of January, 1997.
Witness:
One Price Clothing Stores, Inc.
/s/ Xxxxx X. X'Xxxxxx By: /s/ Xxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxx, xx.
Chairman, President and C.E.O.
"EMPLOYER"
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
"EMPLOYEE"
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 16th day of January,
1995, 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 Xxxxxxx X. Xxxxxxx, a resident of
Lincoln, State of Rhode Island, 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 Chief Financial Officer 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
$225,000, 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:
(i) Employer agrees to reimburse Employee for air travel
up to eight (8) round trip airline tickets, other than first-class, to and from
Greenville/Spartanburg, SC/Providence, RI.
(ii) Transportation of household goods and effects, and
not more than two (2) automobiles.
(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. Total cost of interim
living expenses not to exceed $4,000.00.
(iv) Employer agrees to reimburse Employee for lodging,
meals, etc., for a maximum of three (3) trips, which includes the actual moving
event.
(f) Employer shall pay Employee up to $35,000 of documented
expenses for brokerage fees, closing costs, double mortgage payments and any and
all other related relocation expenses. This payment will be made 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, and provided
Employee has been continuously employed for a period of ninety (90) days,
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.
(ii) In the event Employee has not taken a position with another
Company by the end of six months from the date of Employee's involuntary
termination, Employer shall pay to Employee up to an additional three (3) months
salary continuation on a bi-weekly basis so long as other employment has not
begun.
(iii) 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.
(iv) 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 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 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: Xxxxxxx X. Xxxxxxx
00 Xxxx Xxxx Xxxxx
Xxxxxxx, 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 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 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.
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/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx, Xx. (SEAL)
Xxxxx X. Xxxxxx, Xx.
/s/ Xxxxx X. X'Xxxxxx Chairman of Board of Directors
As to Employer
"EMPLOYER"
/s/Xxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxx (SEAL)
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxx
As to Employee "EMPLOYEE"
