EXHIBIT 10.61
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective the 25th
day of July, 1994 by and between BRENDLE'S INCORPORATED, a North
Carolina corporation ("Brendle's"), and EVERETT PURDY, (the
"Executive").
W I T N E S S E T H:
WHEREAS, Executive is a very valued Executive employee of
Brendle's, and the parties desire to continue such employment and cause
the terms and conditions of such employment relationship to be reduced
to writing as set forth herein and to establish certain new employment
terms for the Executive which constitute new and valuable consideration;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto agree as follows:
1. Employment and Duties. Brendle's hereby agrees to continue to
employ Executive on the terms and conditions contained herein and
Executive agrees to continue his employment with Brendle's in the office
and capacity of Senior Vice President, or in such other position of the
same or greater stature as Brendle's may direct or desire, subject at
all times to the control of Brendle's Chief Executive Officer ("CEO")
and of the Brendle's Board of Directors (the "Board"). Executive shall
perform such other or additional duties as shall reasonably be assigned
to him from time to time by the CEO, which duties shall be those
customarily performed by a corporate officer having executive
responsibilities in a business similar to Brendle's.
2. Extent of Services. Executive shall devote his entire
attention and energy to the business and affairs of Brendle's on a
full-time basis and shall not be engaged in any other business activity,
whether or not such business activity is pursued for gain, profit or
other pecuniary advantage, unless the CEO or the Board otherwise
consents. This provision shall not be construed as preventing Executive
from investing his assets in such form or manner as will not require any
services on the part of Executive in the operation of the affairs of the
companies in which such investments are made. Executive shall use his
best efforts, skills and abilities to promote the interest of Brendle's,
and, subject to Paragraph 1, will perform such duties as are assigned to
him by the Board or by the President or CEO of Brendle's. Full-time, as
used above, shall mean a minimum forty (40) hour work week.
3. Term. The term of this Agreement shall commence on July 25,
1994 and shall thereafter continue until terminated as herein provided.
Unless this Agreement is earlier terminated in accordance with the terms
hereof, the term of this Agreement shall be renewed for new two (2) year
periods on January 1st of each year, and shall be automatically extended
by one additional calendar quarter successively on the first day of each
calendar
quarter thereafter. The term of this Agreement shall be subject to the
following conditions and limitations:
a. Termination by Brendle's for Cause or Material Breach:
(1) Brendle's may terminate this Agreement at any time
for Cause or Material Breach hereof by Executive. As used
herein, "Cause" is defined to mean:
(i) any act of fraud, misappropriation,
embezzlement or like act of dishonesty;,
(ii) conviction of a felony;
(iii) material failure to perform the services and
duties described herein (except in the case of death or
disability), material violation of any of the provisions
set forth herein, or material breach of any fiduciary
duty to Brendle's, if the material failure, violation or
breach unreasonably continues after written notice
thereof is given to Executive by Brendle's;
(iv) if Executive is guilty of gross misconduct,
misfeasance or malfeasance in connection with his
employment hereunder which shall include, but not be
limited to, excessive absences from work, failure to
follow reasonable directives from the Chief Executive
Officer of the Company, neglect of duty, negligence,
disloyalty, dishonesty, intemperance, immorality,
disobedience of Brendle's rules, disrespect,
unnecessarily endangering, damaging or destroying life or
property, or similar conduct injurious to Brendle's; or
(v) other behavior which adversely reflects on the
reputation of Brendle's such as substance abuse, public
intoxication, etc.
As used herein "Material Breach" is defined to mean
a material violation of any of the provisions and conditions
set forth herein. In the event of termination for Cause or
Material Breach by Executive, Brendle's shall continue to pay
Executive his then current salary for thirty (30) days
following the date of the delivery of the notice of
termination, which date shall be for all purposes of this
Agreement, the date of termination of his employment.
b. Disability: In the event that Executive becomes disabled
(as hereinafter defined) Brendle's may terminate his employment by
furnishing him notice of such termination, and Brendle's shall be
obligated to pay Executive his then
-2-
existing salary on a monthly basis for a period of twelve (12)
months from the date that the Executive becomes disabled as defined
herein. As used herein, Executive shall be deemed to be "disabled"
if he:
(1) has been declared legally incompetent by a final
decree of a court of competent jurisdiction (the date of such
decree being deemed to be the date on which the disability
occurred);
(2) receives, for a period of six (6) consecutive
months, disability insurance benefits from any disability
income insurance policy; or
(3) has become "permanently disabled," which shall be
deemed to exist upon a determination by the CEO of Brendle's:
(i) that Executive has become physically or
mentally incapacitated or disabled; and
(ii) that such incapacity or disability has
continued for a period of six (6) consecutive months or
for shorter periods aggregating nine (9) months during
any consecutive fifteen (15)-month period.
In determining disability under item (3) above, the CEO
or Board of Brendle's shall rely upon the written opinion of
the physician regularly attending Executive in determining
whether a disability is deemed to exist. If the CEO or Board
disagrees with the opinion of such physician, the CEO or Board
may choose a second physician, and the two (2) physicians
shall choose a third physician, and the written opinion of a
majority of the three (3) physicians shall be conclusive as to
Executive's disability. The date of any written opinion
conclusively finding Executive to be disabled is the date on
which the disability will be deemed to have occurred. The
expenses associated with the utilization of any physician
other than the physician regularly attending Executive shall
be borne solely by Brendle's. Executive hereby consents to
any required medical examination, agrees to furnish any
medical information requested by Brendle's and to waive any
applicable physician/patient privilege that may arise because
of such determination.
c. Death: If Executive shall die during the term of this
Agreement, thereupon his employment shall terminate, and Brendle's
shall pay his then current salary on a monthly basis for a period
of twelve (12) months commencing on the first of the month
following the date of his death.
-3-
d. Early Retirement: Brendle's currently does not have an
early retirement policy, and, therefore, no rights to early
retirement shall obtain for Executive.
e. Severance Payment: In the event Brendle's terminates or
attempts to terminate this Agreement or Executive's employment with
Brendle's or its subsidiaries is terminated for any reason other
than (1) Executive voluntarily terminating his employment, or (2)
as specifically permitted or delineated in this Agreement,
Executive shall be entitled to a lump sum severance payment equal
to two-years' salary as then in effect. The lump sum payment shall
be made within thirty (30) days of said termination of employment.
In addition, Executive shall be reimbursed his actual,
out-of-pocket packing [ZW] and moving expenses, including
specifically the expenses of the moving van to move his furniture
back to a home in Florida, or such other place as he relocates from
Elkin, North Carolina.
4. Salary, Other Compensation and Benefits. As compensation for
the services to be rendered by Executive to Brendle's pursuant to this
Agreement, Executive shall be paid the following compensation and shall
receive the following benefits:
a. Salary: Executive's annual salary shall be ONE HUNDRED
TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($125,000.00), subject to
change from time to time as approved by the CEO and the Board.
Such salary shall be payable in accordance with Brendle's regular
payroll procedures. In the event Executive receives any periodic
payments representing lost compensation under any health,
disability, accident and/or salary continuation insurance policy,
the premiums for which have been paid by Brendle's, the amount of
salary that Executive would be entitled to receive from Brendle's
shall be decreased by the amount of such payments.
b. Expenses: Executive shall be entitled to reimbursement
for all reasonable travel and other business expenses incurred by
him in the performance of services under this Agreement upon
presentation of expense statements or vouchers and such other
supporting information as Brendle's may reasonably request.
c. Other Compensation: In the discretion of the CEO and/or
the Board, Executive may be entitled to receive additional
compensation in excess of Executive's salary. Subject to the terms
of any of Brendle's employee benefit plans, agreements and
arrangements, Executive shall be entitled to participate in the
major medical, hospitalization, vacation, sick leave or disability,
pension or retirement, profit-sharing, stock-based incentive and
other fringe benefit plans maintained by Brendle's for the benefit
of employees of Brendle's in like positions of responsibility as
Executive.
-4-
5. Covenant Not to Compete:
a. Covenant: During the term of this Agreement and for a
two year period after the Executive's employment with the
Corporation has been terminated by either party, the Executive will
not directly or indirectly:
(1) enter into or attempt to enter into the "Restricted
Business" (as defined below) in the states of North Carolina
or South Carolina or within a fifty (50) mile radius of any
Brendle's store location existing as of the effective date
hereof in any state other than North Carolina or South
Carolina;
(2) induce or attempt to persuade any former, current or
future employee, agent, manager, consultant, director, or
other participant in the Corporation's business to terminate
such employment or other relationship in order to enter into
any relationship with the Executive, any business organization
in which the Executive is a participant in any capacity
whatsoever, or any other business organization in competition
with the Corporation's business; or
(3) use contracts, proprietary information, trade
secrets, confidential information, customer lists, mailing
lists, goodwill, or other intangible property used or useful
in connection with the Corporation's business.
b. Indirect Activity: The term "indirectly," as used in
this paragraph 5, includes acting as a paid or unpaid director,
officer, agent, representative, employee of, or consultant to any
enterprise, or acting as a proprietor of an enterprise, or holding
any direct or indirect participation in any enterprise as an owner,
partner, limited partner, joint venturer, shareholder, or creditor.
c. Restricted Business: The term "Restricted Business"
means the retail sale of general hard goods merchandise and/or
catalogue-showroom sales of hard good merchandise. In addition,
the Executive may own not more than five percent of the outstanding
equity securities of a corporation that is engaged in the
Restricted Business if the equity securities are listed for trading
on a national stock exchange or are registered under the Securities
Exchange Act of 1934. In the event that Executive shall be
employed by a national retailing chain of stores in the Restricted
Business which has stores not only in North Carolina or South
Carolina or within a fifty (50)-mile radius of any Brendle's store
location in any state other than North Carolina or South Carolina,
Executive hereby agrees not to be employed in a division or part of
the business of said national chain which would compete directly
with Brendle's in the states of North Carolina or South Carolina or
within a fifty (50)-mile radius of any Brendle's
-5-
store location existing as of the effective date hereof in any
state other than North Carolina or South Carolina.
6. Confidential Information and Discoveries: Executive agrees
that all information of a technical or business nature such as know-how,
trade secrets, secret business information, plans, data, processes,
techniques, customer information, inventions, discoveries, formulae,
patterns, devices, etc., except such information and skills generally
known in Brendle's trade and business, information made public by
Brendle's or generally of a public nature, and knowledge of Executive
not constituting a trade secret (the "Confidential Information"),
acquired by Executive in the course of his employment by Brendle's, is a
valuable business property right of Brendle's. Executive agrees that
such Confidential Information, whether in written, verbal or model form,
shall not be disclosed to anyone outside the employment of Brendle's
without the express written authorization of Brendle's. The Confidential
Information shall include, without limitation, vendor lists and records,
customer lists, business policies, business methods, financial
information and any other similar material of any kind relating to the
business of Brendle's.
Any and all improvements, inventions, discoveries, formulae or
processes materially related to Brendle's business which Executive may
conceive or make during his regular working hours or otherwise shall be
the sole and exclusive property of Brendle's and Executive will disclose
the same to Brendle's and will, whenever requested by Brendle's to do so
(either during the term of this Agreement or thereafter), execute and
assign any and all applications, assignments and/or other instruments
and do all things which Brendle's may deem necessary or appropriate in
order to apply for, obtain, maintain, enforce and defend patents,
copyrights, trademarks or other forms of protection, or in order to
assign and convey or otherwise make available to Brendle's the sole and
exclusive right, title and interest in and to said improvements,
inventions, discoveries, formulae, processes, applications or patents.
No provision in this Agreement is intended to require assignment of
any of Executive's rights in an invention if no equipment, supplies,
facilities or trade secret information of Brendle's was used, the
invention was developed entirely on Executive's own time, the invention
does not materially relate to the business of Brendle's or to Brendle's
actual or demonstrably anticipated research or development, and does not
result from any work performed by Executive for Brendle's.
7. Enforcement: Both parties recognize that the services to be
rendered under this Agreement by Executive are special, unique and of
extraordinary character and that in the event of the breach by Executive
of any of the terms and conditions of this Agreement to be performed by
him, then Brendle's shall be entitled, if it so elects, to institute and
prosecute proceedings in any court of competent jurisdiction, either at
law or in equity, to obtain damages for any breach hereof, or to enjoin
Executive from
-6-
performing acts prohibited hereby, but nothing herein contained shall be
construed to prevent such other remedy in the courts as Brendle's may
elect to invoke.
8. Return of Documents and Equipment: Upon the termination of
this Agreement, Executive shall forthwith return and deliver to
Brendle's and shall not retain any original or copies of any books,
papers, price lists or vendor contracts, bids or customer lists, files,
books of account, notebooks and other documents, data relating to the
performance of services rendered by Executive hereunder or any
equipment, all of which materials are hereby agreed to be the property
of Brendle's.
9. Resignation upon Termination: In the event of termination of
this Agreement other than by death, Executive hereby agrees to resign
from all positions held with Brendle's, including without limitation,
any position as a director, officer, agent, trustee or consultant of
Brendle's or any affiliate of Brendle's.
10. Miscellaneous:
a. Notices: Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and if sent
by registered or certified mail to Executive or Brendle's at the
address set forth below their signatures at the end of this
Agreement or to such other address as they shall notify each other
in writing.
b. Assignment: This Agreement shall be binding upon and
inure to the benefit of Brendle's and its successors and assigns
and Executive and his personal representatives, heirs, legatees and
beneficiaries, but shall not be assignable by Executive.
c. Applicable Law: This Agreement shall be construed in
accordance with the laws of the State of North Carolina in every
respect, including without limitation, validity, interpretation and
performance.
d. Headings: Section headings and numbers herein are
included for convenience of reference only and this Agreement is
not to be construed with reference thereto. If there be any
conflict between such numbers and headings and the text hereof, the
text shall control.
e. Severability: If for any reason any portion of this
Agreement shall be held invalid or unenforceable, it is agreed that
the same shall not affect the validity or enforceability of the
remainder hereof.
f. Entire Agreement: This Agreement contains the
entire agreement of the parties with respect to its subject
-7-
matter and supersedes all previous agreements between the
parties. No director, officer, employee or representative of Brendle's
has any authority to make any representations or promises in connection
with this Agreement or the subject matter hereof that is not contained
herein, and Executive represents and warrants that he has not executed
this Agreement in reliance upon any such representa- tion or promise. No
modification of this Agreement shall be valid unless made in writing and
signed by the parties hereto.
g. Waiver of Breach: The waiver by a party hereto of a
breach of any provision of this Agreement by the other party hereto
shall not operate or be construed as a waiver of any subsequent
breach by such party.
h. Counterparts: This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one agreement.
i. Implied Terms: The terms, conditions, obligations and
duties expressed in this Agreement are in addition to any duties
and obligations implied in law to an employment relationship except
where any expressed condition is contrary to the implied condition
and in which case, the express condition will apply and control.
j. Effective Date: For all purposes, this Agreement shall
be effective as of July 25, 1994.
IN WITNESS WHEREOF, Brendle's has caused this Agreement to be
executed by its duly authorized officer and Executive has signed this
Agreement all on the day and year first above written.
BRENDLE'S INCORPORATED
By: _________________________________
Douglas D. Brendle, President
and Chief Executive Officer
1919 N. Bridge Street Ext.
Elkin, North Carolina 28621
EXECUTIVE:
_______________________________(SEAL)
Address: 155 Warwick Place
Bermuda Run, NC 27006
-8-