EXHIBIT 10.62
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective the 1st
day of August, 1994 by and between BRENDLE'S INCORPORATED, a North
Carolina corporation ("Brendle's"), and GREGORY S. STEGALL, (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;
WHEREAS, Executive and Brendle's entered into an Employment
Agreement, effective November 17, 1992 and continuing to the
present, and hereby desire to enter into this Agreement which shall
supersede the prior Employment Agreement and which extends
Executive's contract terms and provides other 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 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
August 1, 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 one (1)-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
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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
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
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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.
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 one (1)-year's salary
as then in effect. The lump sum payment shall be made within
thirty (30) days of said termination of employment.
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 THREE THOUSAND AND 00/100 DOLLARS ($103,000.00),
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.
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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.
5. Covenant Not to Compete:
a. Covenant: During the term of this Agreement and for
a one (1)-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
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are listed for trading on a national stock exchange or are
registered under the Securities Exchange Act of 1934.
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
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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
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.
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f. Entire Agreement: This Agreement contains the
entire agreement of the parties with respect to its subject
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 representation 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 August 1, 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: _(Signature of Douglas D. Brendle appears here)_
Douglas D. Brendle, President
and Chief Executive Officer
1919 N. Bridge Street Ext.
Elkin, North Carolina 28621
EXECUTIVE:
_(Signature of David R. Renegar appears here)_ (SEAL)
Address: Rt. 2 Box 685
State Road, N.C. 28676
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