EXHIBIT 10.44
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of December
1, 1997, by and between St. Xxxx Knits, Inc., a California corporation (the
"Company"), and Xxxxxx X. Xxxxx (the "Consultant").
BACKGROUND
Prior to April 24, 1996, the Consultant was President, Chief Operating
Office, Assistant Secretary and a Director of the Company. The Consultant
resigned on that date to pursue personal interests; however, subsequent to that
date through the present, he has continued to perform limited services to the
Company under the terms of a Consulting Agreement dated April 24, 1996. That
Agreement terminated on November 19, 1997. The Company desires to maintain
access to the Consultant and his opinion, advice and knowledge concerning the
business of the Company. The Consultant and the Company desire to enter into
this Agreement to assure the Company of the services of the Consultant from
December 1, 1997 through November 30, 1998 (the "Term").
AGREEMENT
In consideration of the mutual covenants, term and conditions set forth
herein, the parties agree as follows:
1. DUTIES OF CONSULTANT. The Consultant agrees to advise and consult with
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the Company as reasonably requested by the Company from time to time
during the Term. The Consultant agrees to perform such services
conscientiously and to the best of his ability.
2. COMPENSATION.
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(a) In consideration of Consultant's duties under Section 1, the Company
shall pay Consultant in the aggregate $75,000 payable in twelve
substantially equal amounts at the end of each month during the Term;
the first payment payable on December 31, 1997 and the last payment
payable on November 30, 1998. The Company also shall reimburse
Consultant for all reasonable out-of-pocket expenses paid by the
Consultant during the Term in the performance of his services
hereunder, upon Consultant's presentation of expense statements or
vouchers or such other supporting information as the Company
customarily requires in accordance with its outside services billing
practices.
(b) Notwithstanding the provisions of Section 2 (a) above, if during the
Term the Consultant is employed by another corporation, partnership or
other entity, the Consultant shall no longer receive any payments under
this Agreement other than a prorated amount for any portion of a period
prior to the date the Consultant was so employed.
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3. INDEPENDENT CONTRACTOR. The Consultant acknowledges that he is being
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engaged on an independent contractor basis hereunder, and that the
Consultant will not be eligible for benefits generally available to the
employees of the Company. No compensation to be paid to the Consultant
for his consulting services under this Agreement will be subject to any
withholding or deductions required by local, state or federal law with
respect to employees.
4. NO REPRESENTATION OF THE COMPANY. The Consultant agrees that he will
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not (i) enter into any agreements, arrangements or undertakings binding
or on behalf of the Company or for the benefit of the Company or (ii)
make representations that he has authority to act for or represent that
he is engaged by the Company in any capacity other than as a
consultant during the Term, except as authorized by an executive
officer of the Company in writing.
5. CONFIDENTIALITY. The Consultant acknowledges that he will have access
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to, and that there will be disclosed to him, information of a
confidential and/or trade secret nature that has great value to and
that constitutes a substantial basis and foundation upon which the
business of the Company is predicated ("Confidential Information").
During the Term and thereafter, the Consultant shall keep all
Confidential Information in confidence and shall not disclose any
Confidential Information to any other person, except (i) to the
Company's personnel on a "need-to-know" basis and other persons
designated in writing by an executive officer of the Company, (ii) to
the extent such disclosure may by required by law, (iii) if such
information hereafter becomes lawfully obtainable from other sources,
or (iv) to the extent such duty as to confidentiality is waived in
writing by an executive officer of the Company. Without the express
written consent of an executive officer of the Company, the Consultant
shall not use or permit to be used any Confidential Information for the
gain or benefit of any party outside of the Company or for the
Consultant's personal gain or benefit outside the scope of the
Consultant's engagement by the Company. The Consultant agrees to
deliver promptly to the Company on termination of this Agreement, or
at any other time that the Company may so request, all memoranda,
notes, records, reports, and other documents (and all copies thereof)
relating to Confidential Information and/or the business of the Company
that he obtained while employed by or otherwise serving or acting on
behalf of the Company or any of its subsidiaries.
6. INDEMNIFICATION OF THE CONSULTANT. The Company shall indemnify and hold
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harmless the Consultant from and against any and all claims, expenses
and liabilities (including, without limitation, attorneys' fees and
costs of investigation and defense) he may incur by reason of the
Consultant providing services to or for the Company by virtue of this
Agreement so long as Consultant acted in good faith and in a manner
Consultant reasonably believed to be in the best interests of the
Company.
7. MISCELLANEOUS. Except for that Mutual Release Agreement between the
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Company and Consultant dated April 24, 1996 and Article III and Article
V
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(other than Sections 5.6 and 5.8 thereof) of the Consultant's
Employment Agreement with the Company, dated as of January 1, 1996 (the
"Employment Agreement"), this Agreement supersedes all prior agreements
between the parties concerning employment or consulting arrangements
with the Company which are hereby terminated in their entirety (except
for Article III and Article V (other than Sections 5.6 and 5.8 thereof)
of the Employment Agreement which shall survive), and constitutes the
entire agreement between the parties with respect thereto. This
Agreement may be modified only with a written instrument duly executed
by each of the parties. No waiver by any party of any breach of this
Agreement will be deemed to be a waiver of any preceding or succeeding
breach. The Consultant acknowledges and agrees that the Company's
remedy at law for any breach of the Consultant's obligations hereunder
would be inadequate, and agrees and consents that temporary and
permanent injunctive relief may be granted in any proceeding which may
be brought to enforce any provision of this Agreement.
EXECUTED as of the date first mentioned above, at Orange County,
California.
ST. XXXX KNITS, INC.
a California corporation
By: /s/ XXX XXXX
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Name: Xxx Xxxx
Title: Chief Executive Officer
XXXXXX X. XXXXX
/s/ XXXXXX X. XXXXX
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