Exhibit 10-116
CONSULTING AGREEMENT
CONSULTING AGREEMENT ("Agreement") made as of the 31st day of March, 2003,
by and between I.C. Xxxxxx & Company, L.P. (the "Company") and Societe de
Finance et d'Investissement, SA ("Consultant").
WITNESSETH:
WHEREAS, the Consultant has particular experience in international markets,
in representing the interests of, and supporting the needs of, licensors and
licensees of trademarks and other forms of intellectual property; and
WHEREAS, the Company maintains important business relationships with the
senior managements of Wurzburg International, SA, Textile Investment
International, SA, Latitude Licensing Corp. and other entities comprising the
group of companies that design and license the manufacture of apparel under the
Marithe & Francois Girbaud trademarks (the "Girbaud Companies"), and is the
holder of various licenses granted by one or more of the Girbaud Companies (the
"Girbaud Licenses"); and
WHEREAS, the Company desires to engage Consultant to provide the services
of Xxxxxxx Xxxxxxxxx ("Ahrenberg") described below; and
WHEREAS, the Company desires to provide such services pursuant to the
terms, and subject to the conditions hereinafter set forth,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Engagement of Consultant. The Company hereby retains Consultant to
assist the Company in its dealings with the senior managements of the Girbaud
Companies, support the Company in its efforts to comply with its obligations
under the Girbaud Licenses and expand the scope of such licenses, if the Company
determines that it would like to do so, promote the sale of the Company's
products in Canada and assist the Company with regard to the manufacture of the
Company's products in Asia, Europe and Mexico (the "Services"). It is understood
and agreed that the Services will be rendered solely in Asia, Europe, Canada and
Mexico, provided, that, Ahrenberg shall be expected to travel to the United
States to conduct meetings with the senior management of the Company in
connection with his rendition of the Services. It is further understood that
such Services shall be provided solely by Ahrenberg on a non-exclusive basis,
and that Ahrenberg shall devote such time and effort as shall be reasonably
required to render the Services.
2. Responsibilities of Consultant. During the Term of this Agreement and
any renewal thereof, Consultant shall cause Ahrenberg to be available at such
locations in Asia, Europe, Canada, the United States and Mexico on such dates
and at such times as are to be mutually agreed upon, to render the Services and
advise the Company with regard to its efforts to comply with its obligations
under, and to broaden the scope of, the Girbaud Licenses. Consultant shall cause
Ahrenberg to advise the Company on all matters within his expertise and
knowledge reasonably related to the Services.
3. Term. The term of this Agreement shall be the period commencing on the
date of this Agreement and ending on December 31, 2003.
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4. Compensation. Consultant shall receive the sum of $200,000 from the
Company as compensation for the Services, payable as follows: the sum of $25,000
shall be paid to Consultant on the first business day of each month during the
period commencing in May 2003 and ending in December 2003 by wire transfer to
the account designated by Consultant for such purpose. For purposes of this
Agreement the term "first business day" means the first day of each month that
shall not be a Saturday, Sunday or a day on which commercial banks are
authorized or required to close in the State of New York.
5. Reimbursement of Consultant. The Company shall reimburse Consultant for
all reasonable travel and other expenses necessarily incurred and paid by
Ahrenberg in the course of the performance of his duties under this Agreement,
provided, that the Company has received from Consultant proper statements and
receipts setting forth the nature and amount of such expenses. It is understood
that any air travel undertaken by Ahrenberg hereunder shall be booked in
Business Class when available.
6. Representation by Consultant. Consultant warrants and represents that it
is free to enter into this Agreement and that it is able to cause Ahrenberg to
provide the Services.
7. Independent Contractor. Consultant is hereby retained and engaged by the
Company only for the purposes and to the extent set forth in this Agreement.
Consultant and the Company agree that no employment relationship is created by
this Agreement, and that this Agreement does not constitute an agreement to
enter into an employment relationship at any time in the future. Moreover, the
parties hereto agree that the Company will not consider Consultant as an
employee of the Company for federal or state payroll tax purposes. Company is
interested only in the results to be achieved by Consultant's performance of the
Services. Consultant is an independent contractor and is not considered an agent
or common-law employee of the Company for any purpose. Consultant is not
entitled to any of the benefits that the Company may provide to its employees,
including but not limited to participation in any health insurance, ESOP, 401(k)
plan, pension, employee stock option plan, or any other retirement benefit plan.
8. Consultant's Tax Obligations. To the extent required by law, Consultant
shall be solely responsible for and shall make proper and timely payment of any
taxes due on payments made:
8.1. To Consultant pursuant to this Agreement (including but not
limited to Consultant's estimated state and federal payroll taxes and
self-employment taxes); and
8.2. To other persons who provide services to Consultant in connection
with this Agreement.
8.3. Consultant hereby agrees to indemnify the Company against any
claims, liabilities or expenses the Company incurs as a result of
Consultant's breach of its obligations under this paragraph 8.
9. Indemnification. It is understood that the Company has no obligation to
pay any compensation to Ahrenberg or any person other than Consultant hereunder,
and Consultant hereby indemnifies and holds the Company harmless with respect to
any loss or damage (including the Company's reasonable attorneys fees) that the
Company may suffer or incur as a result of any claim, action or proceeding that
may be commenced against the Company by Ahrenberg or any other person claiming
entitlement to payment hereunder or as a result of such person's rendition of
all or any part of the Services.
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10. Assignment. This Agreement may not be assigned or otherwise transferred
by Consultant, provided, however, that Consultant may assign its entitlements to
receive the compensation specified herein to any person or entity.
11. Successors. This Agreement shall inure to the benefit of and may be
enforced by the Company and its successors and assigns and shall be binding on
Consultant and his executors, administrators, heirs and other successors in
interest.
12. Partial Invalidity. The invalidity or unenforceability of any provision
of this Agreement or the invalidity or unenforceability of any provision as
applied to a particular occurrence or circumstance shall not affect the validity
or enforceability of any other provisions of this Agreement or any other
application of any such provision.
13. Notices. Any notice or other communication required or permitted by
this Agreement shall not be effective unless given or served in writing by
personal delivery or sent by United States registered or certified mail, return
receipt requested, addressed as follows:
If to Company:
I.C. Xxxxxx & Company, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, Girbaud Division
If to Consultant:
Societe de Finance et d'Investissement, SA
00, Xxx Xxxxxxxx
XX Xxx 000
0000 Xxxxxx 00
Xxxxxxxxxxx
Attention: Xxxx Xxxx Xxx, Managing Director
or such other addresses as the parties hereto may from time to time designate in
writing. Unless otherwise specified herein, notice or other communication shall
be deemed given as of the date so mailed or if personally delivered on the date
so delivered.
14. Headings. The headings of the paragraphs and the subparagraphs of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
16. Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement and all disputes arising hereunder will be
governed by and construed in accordance with the domestic laws of the State of
New York, without giving effect to any choice of law or conflict of law
provision or rule that would cause the application of the laws of any
jurisdiction other than the State of New York.
17. Attorneys' Fees. In the event that a dispute arises with respect to or
out of this Consulting Agreement, the party prevailing in such dispute shall be
entitled to recover all expenses, including, without limitation, reasonable
attorneys' fees and expenses, incurred in ascertaining such party's rights, in
preparing to enforce, or in enforcing such party's rights under this Agreement,
whether or not it was required or necessary for such party to institute its suit
or claim.
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
I.C. Xxxxxx & Company, L.P.
By: I.C. Xxxxxx & Company, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
Societe de Finance et d'Investissement, SA
By: /s/ Xxxx Xxxx Xxx
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Xxxx Xxxx Xxx, Managing Director
