Exhibit 10.17
CONSULTING AGREEMENT
This CONSULTING AGREEMENT by and between XXXXXX XXXXXX, LTD., a
Delaware corporation with offices at 00-00 Xxxxxxx Xxxxxx, Xxxx Xxxxxx Xxxx,
X.X. 00000 (the "Corporation"), and XXXXXXX XXXXXXXXX, an individual residing at
00 Xxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000 ("Consultant"), is effective as
of June 1, 2004 (the "Effective Date").
WITNESSETH:
WHEREAS, subject to the terms and considerations hereinafter set forth,
the Corporation wishes to retain Consultant to provide consulting services to
the Corporation for the term set forth herein, and Consultant wishes to provide
such consulting services.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, terms, provisions, and conditions set forth in this Agreement,
the parties hereby agree as follows:
Section 1. CONSULTING SERVICES. For the Term of this Agreement
and upon the terms and subject to the conditions set froth in this Agreement,
Consultant agrees to provide the Corporation with general consulting services.
Consultant shall, among other things, (i) provide advice regarding the methods
by which the Corporation can enhance, protect and promote the Corporation's
brands, (ii) seek and find licensing, acquisition or other opportunities for the
Corporation's brands, (iii) consult with the Corporation's Chief Executive
Officer on a regular basis with regard to such issues as deemed necessary or
appropriate by the Chief Executive Officer and (iv) provide marketing and
advertising advice including, without limitation, advice regarding marketing
strategies, establishing marketing and advertising budgets and using music and
musicians to promote the Corporation's brands. Consultant shall also perform
such other duties as may be reasonably prescribed by the Corporation's Chief
Executive Officer. During the Term of this Agreement, Consultant shall report
directly to the Corporation's Chief Executive Officer.
Section 2. PERFORMANCE OF DUTIES/WORK SCHEDULE. Throughout the Term
of this Agreement, Consultant shall faithfully and diligently perform
Consultant's duties in conformity with the directions of the Corporation's Chief
Executive Officer and will serve the Corporation to the best of Consultant's
ability. During the Term of this Agreement, Consultant shall provide such
services to the Corporation on an as needed basis.
Section 3. RELATIONSHIP OF PARTIES.
3.1 Independent Contractor. Consultant shall be an
independent contractor and shall not be an agent or employee of, and shall have
no authority to bind, the Corporation by contract or otherwise.
3.2 Employment Taxes. Consultant will report as
self-employment income all fees received by Consultant pursuant to this
Agreement. Consultant will indemnify the Corporation and hold it harmless from
and against all claims, damages, losses and expenses, including reasonable fees
and expenses of attorneys and other professionals, relating to any obligation
imposed by law on the Corporation to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in connection with the
fees received by Consultant pursuant to this Agreement.
Section 4. TERM. Subject to the termination provision as hereafter
provided, the term of this Agreement shall commence on the Effective Date and
terminate on June 30, 2005 (the "Term"), or upon such earlier date as specified
by one of the parties in a written termination notice to the other, delivered in
accordance with Section 6 of this Agreement.
Section 5. FEE / BUSINESS EXPENSES.
5.1 Fee. In consideration of Consultant's performance of
consulting services and compliance with this Agreement, the Corporation shall
pay to Consultant a fee (the "Fee") in the amount of $15,000.00 per month for
the Term of this Agreement, commencing on the Effective Date. The Fee shall be
paid in substantially equal installments on a basis consistent with the
Corporation's payroll practices.
5.2 Business Expenses. Upon submission of itemized expense
statements in the manner specified by the Corporation, Consultant shall be
entitled to reimbursement for reasonable travel and other reasonable business
expenses duly incurred by Consultant in the performance of Consultant's duties
under this Agreement, provided, however that Consultant shall obtain the prior
written approval of the Corporation for expenses greater than $100. Such
reimbursement shall be in accordance with the policies and procedures
established by the Corporation from time to time.
5.3 Bonus. In addition to the Fee provided in Section 5.1,
Consultant may be entitled to a bonus (in an amount up to one percent (1%) of
the consideration paid by the Corporation) if he locates licensing, acquisition
or other transactions that are ultimately consummated by the Corporation (or any
of its subsidiaries). Whether such a bonus will be paid (and if so, the amount
of such bonus) shall be determined in the sole discretion of the Corporation's
Board of Directors. Notwithstanding anything to the contrary in this Agreement,
Consultant acknowledges and agrees that he shall not be entitled to any bonus,
broker's fee, finder's fee or similar fee in connection with any transaction(s)
involving the direct or indirect acquisition of the Corporation or any of its
subsidiaries.
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Section 6. TERMINATION. Either the Corporation or Consultant may
terminate Consultant's services hereunder for any reason at any time, provided,
however, that if the Corporation terminates Consultant's services for any reason
any time prior to June 30, 2005, the Corporation shall continue to pay
Consultant the Fee through such date. The obligations of the parties under
Section 7 (Disclosure of Confidential Information), Section 8 (Covenant Not To
Compete) and Section 9 (Non-Disparagement) shall survive the termination of this
Agreement. Notice of termination of Consultant's employment shall be made in
writing and shall be given in accordance with Section 11.8.
Section 7. DISCLOSURE OF CONFIDENTIAL INFORMATION. Consultant
recognizes that he has had and will continue to have access to secret and
confidential information regarding the Corporation, its officers, directors,
employees, agents and vendors and any of its or their affiliates, including, but
not limited to, confidential information and trade secrets concerning the
Corporation's (or any of its affiliate's) working methods, processes, business
and other plans, programs, designs, products, know-how, costs, marketing,
promotion, sales activities, trading, investment, credit and financial data,
manufacturing processes, financing methods, profit formulas, customer names,
customer requirements and supplier names. Consultant acknowledges that such
information is of great value to the Corporation, is the sole property of the
Corporation, and has been and will be acquired by him in confidence. In
consideration of the obligations undertaken by the Corporation herein,
Consultant will not, at any time, during or after the Term, reveal, divulge or
make known to any person, any information acquired by Consultant prior to or
during the Term, including but not limited to its customer list, and not
otherwise in the public domain. The provisions of this Section 7 shall survive
the termination or expiration of this Agreement. Upon Consultant's breach of the
provisions of this Section 7, the Corporation shall be entitled to actual,
consequential and incidental damages in addition to any other rights and
remedies available to the Corporation.
Section 8. COVENANT NOT TO COMPETE.
(a) Consultant recognizes that the services to be
performed by him hereunder are special, unique and extraordinary. The parties
confirm that it is reasonably necessary for the protection of the Corporation
that Consultant agree, and accordingly, Consultant does hereby agree that,
except as provided in Subsection (c) below, he shall not, directly or
indirectly:
(i) at any time during the Term of this Agreement,
engage in any Competitive Business (as defined in Section 8(d) below)
within the Restricted Area (as defined in Section 8(d) below), either
on his own behalf or as an officer, director, stockholder, partner,
principal, trustee, investor, consultant, associate, employee, owner,
agent, creditor, independent contractor, co-venturer of any third party
or in any other relationship or capacity; and
(ii) at any time during the six (6) month period
following the date on which the Term expires, engage in any Competitive
Business within the Restricted Area, either on his own behalf or as an
officer, director, stockholder, partner, principal, trustee, investor,
consultant, associate, employee, owner, agent, creditor, independent
contractor, co-venturer of any third party or in any other relationship
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or capacity, provided, however, that the restrictions in this Section
8(a)(ii) shall not apply if this Agreement is terminated by the
Corporation prior to the expiration of the Term.
(b) Consultant hereby agrees that he will not, directly
or indirectly, for or on behalf of himself or any third party, at any time
during the Term of this Agreement (i) solicit any customers of the Corporation
or (ii) solicit, employ or engage, or cause, encourage or authorize, directly or
indirectly, to be employed or engaged, for or on behalf of himself or any third
party, any employee or agent of the Corporation or any of its subsidiaries.
(c) This Section 8 shall not be construed to prevent
Consultant from owning, directly and indirectly, in the aggregate, an amount not
exceeding ten percent (10%) of the issued and outstanding voting securities of
any class of any corporation whose voting capital stock is traded on a national
securities exchange or in the over-the-counter market.
(d) The term "Competitive Business" as used in this
Agreement shall mean the design, manufacture, sale, marketing or distribution of
branded or designer footwear. The term "Restricted Area" as used in this
Agreement shall mean anywhere in the world.
(e) Upon Consultant's breach of the provisions of this
Section 8, the Corporation shall be entitled to actual, consequential and
incidental damages in addition to any other rights and remedies available to the
Corporation.
Section 9. NON-DISPARAGEMENT. Consultant covenants and agrees not
to engage in any act or make any announcement that is intended, or may
reasonably be expected, to harm the reputation, business, prospects or
operations of the Corporation, its officers, directors, stockholders or
employees. The Corporation agrees that it will not engage in any act or make any
announcement which is intended, or may reasonably be expected, to harm the
reputation, business or prospects of Consultant. Nothing in this Agreement shall
restrict Consultant or the Corporation from making disclosure or taking any
action required by law. Upon Consultant's breach of the provisions of this
Section 9, the Corporation shall be entitled to actual, consequential and
incidental damages in addition to any other rights and remedies available to the
Corporation.
Section 10. EXTENSION OF OPTION EXERCISE PERIOD. Consultant
currently holds the options to purchase shares of common stock of the
Corporation set forth on Schedule A hereto (the "Outstanding Options"). The
parties hereto agree that Consultant shall have until June 30, 2005 to exercise
the Outstanding Options. Any Outstanding Options that remain unexercised after
June 30, 2005 shall be terminated.
Section 11. MISCELLANEOUS.
11.1 ENFORCEMENT OF COVENANTS. The parties hereto agree that
Consultant is obligated under this Agreement to render personal services during
the Term of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Agreement peculiar value, and in the event of a
breach of any covenant of Consultant herein, the injury or imminent injury to
the value and goodwill of the Corporation's business could not be reasonably or
adequately compensated in damages in an action at law. Consultant therefore
agrees that the Corporation, in addition to any other remedies available to it,
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shall be entitled to seek specific performance, preliminary and permanent
injunctive relief or any other equitable remedy against Consultant, without the
posting of a bond, in the event of any breach or threatened breach by Consultant
of any provision of this Agreement (including, but not limited to the provisions
of Sections 7 and 8). The rights and remedies of the parties hereto are
cumulative and shall not be exclusive, and each party shall be entitled to
pursue all legal and equitable rights and remedies and to secure performance of
the obligations and duties of the other under this Agreement, and the
enforcement of one or more of such rights and remedies by a party shall in no
way preclude such party from pursuing, at the same time or subsequently, any and
all other rights and remedies available to it.
11.2 SEVERABILITY. The invalidity or partial invalidity of
one or more provisions of this Agreement shall not invalidate any other
provision of this Agreement. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.3 ASSIGNMENTS. Neither Consultant nor the Corporation may
assign or delegate any of their rights or duties under this Agreement without
the express written consent of the other, except the Corporation may transfer
its rights and duties in connection with a sale of all or substantially all of
its assets or in connection with a business combination.
11.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes
and embodies the full and complete understanding and agreement of the parties
hereto, supersedes all prior understandings and agreements, whether oral or
written, between Consultant and the Corporation, and shall not be amended,
modified or changed except by an instrument in writing executed by Consultant
and by an expressly authorized officer of the Corporation.
11.5 WAIVER. No waiver of any provision hereof shall be
effective unless made in writing and signed by the waiving party. The failure of
either party to require the performance of any term or obligation of this
Agreement, or the waiver by either party of any breach of this Agreement, shall
not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
11.6 BINDING EFFECT. This Agreement shall inure to the
benefit of, be binding upon and enforceable against, the parties hereto and
their respective successors, heirs, beneficiaries and permitted assigns.
11.7 HEADING. The headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.8 NOTICES. Any and all notices, requests, demands and
other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered,
sent by registered or certified mail, return receipt requested, postage prepaid,
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or by private overnight mail service (e.g. Federal Express) to the party at the
address set forth above or to such other address as either party may hereafter
give notice of in accordance with the provisions hereof. Notices shall be deemed
given on the sooner of the date actually received or the third business day
after sending.
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to such State's conflicts of laws principles and each of the parties
hereto irrevocably consents to the jurisdiction and venue of the federal and
state courts located in the State of New York, County of New York.
11.10 COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
XXXXXX XXXXXX, LTD.
By: /s/ XXXXXXXX XXXXXX
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Name: Xxxxxxxx Xxxxxx
Title: Chief Executive Officer
/s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx
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