VINCE, LLC CONSULTING SERVICES AGREEMENT
EXHIBIT 10.41
XXXXX, LLC
THIS CONSULTING SERVICES AGREEMENT (this “Agreement”) dated this 23rd day of November, 2015 by and between Xxxxx, LLC a Delaware limited liability company (the “Company”), and Xxx Xxxxxxx (the “Consultant”).
WHEREAS, in light of the Consultant’s experience and knowledge regarding the Company and industry-related matters, the Company wishes to retain the services of the Consultant on the terms and conditions set forth herein and the Consultant has agreed to so serve the Company and its affiliates.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. |
Consulting Period. The Company shall retain the Consultant pursuant to the terms of this Agreement, and the Consultant shall provide the “Services” (as defined in Section 2 hereof) commencing on November 4, 2015 (the “Effective Date”) and ending on February 3, 2018. Notwithstanding the foregoing, the Consultant or the Company may terminate the consulting arrangement hereunder at any time and for any reason (or no reason) by providing the other party with at least ninety (90) days’ advance written notice of such termination; provided that if such notice is provided by the Consultant, the Company may elect to end the consulting term prior to the end of such notice period. The period of time between the Effective Date and the termination of the Consultant’s service relationship with the Company hereunder shall be referred to herein as the “Consulting Period.” |
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Services. During the Consulting Period, the Company hereby retains the Consultant to perform the services of merchandising of women’s and men’s apparel and handbags, assisting in fabric and factory sourcing and coordinating design with third-party licensees, and such other similar duties, authorities and responsibilities as may reasonably be assigned to the Consultant from time to time (the “Services”). The position will not be full time. The Consultant may perform the Services at such times and in such manner as reasonably requested by the Company from time to time; provided that, to the extent that the Company does not require the Consultant to perform the Service from a specific location, the Consultant may perform the Services at a location of the Consultant’s choice so long as the Consultant is available to report by telephone or in person as reasonably requested by the Company. The Consultant shall report directly to the Chief Executive Officer of the Company. The Consultant’s performance of the Services will principally be in the Los Angeles, California area and the Company will permit the Consultant to perform substantially all of the Services there. Such offices within Los Angeles shall be the existing Los Angeles offices of the Company or such other premises as may be reasonably acceptable to the Consultant. The Consultant will be provided offices and appropriate administrative help at such location, and such members of the design staff as she designates shall also be located in the Company’s Los Angeles offices. |
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(a) |
Consulting Fee. During the Consulting Period, the Consultant shall be entitled to receive an annualized fee of $2,500,000, payable in equal installments in accordance with the Company’s normal payroll practices (the “Consulting Fee”), prorated for any partial years of service. |
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(b) |
Reimbursement for Business Expenses. Upon presentation of appropriate documentation, the Consultant shall be reimbursed, in accordance with the Company’s expense reimbursement policy, for all reasonable business expenses incurred in connection with the Consultant’s performance of the Services. In connection with any business related travel during the Consulting Period, (i) the Consultant will be reimbursed for business class airfare for domestic flights and first class airfare for international flights and (ii) the Consultant will be reimbursed for overnight accommodations at the Xxxxxx, the Xxxxxx or the Xxxxxx, or their equivalent hotels in New York and elsewhere. |
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(c) |
Bonus. The Consultant shall be entitled to an annual bonus of $1,000,000, to be paid on an annual basis no later than February 28th of the fiscal year following the conclusion of the fiscal year to which the bonus relates, subject to the Consulting Period continuing through the end of each such fiscal year to which the bonus relates; provided that if the Company terminates the Consulting Period without Cause (as defined below), the Consultant shall be entitled to a pro rata share of the annual bonus based on the number of days prior to the termination of the Consulting Period that fall during such fiscal year, payable within thirty (30) days following the end of the Consulting Period. The bonus with respect to the fiscal year ending on or about January 31, 2016 shall be prorated based on the number of days following the Effective Date that fall during such fiscal year. |
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(d) |
Equity. Upon the execution of this Agreement, the Consultant will receive a grant of options (the “Options”) to acquire 200,000 shares of common stock of Xxxxx Holding Corp., a Delaware corporation (the “Parent”), pursuant to the Parent’s 2013 Incentive Plan, in the form attached hereto as Exhibit A. |
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(e) |
Legal Fees. The Company shall reimburse the Consultant for legal fees incurred in connection with the negotiation of this Agreement, provided that evidence of such fees shall be supplied to the Company and the amount of such reimbursement shall be capped at $12,500. |
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material breach of this Agreement or any other agreement with the Company or Parent, or a material violation of the Company’s or Parent’s code of conduct or other written policy. An act or failure to act shall be considered “willful” only if done or omitted to be done without a good faith reasonable belief that such act or failure to act was in the best interests of the Company. Any determination of Cause by the Company will be made by a resolution approved by a majority of the members of the Board, provided that no such determination may be made until the Consultant has been given written notice detailing the specific Cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the reasonable satisfaction of the Board. Notwithstanding anything to the contrary contained herein, the Consultant’s right to cure shall not apply if there are habitual breaches by the Consultant. |
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Independent Contractor Status. |
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(a) |
The Consultant acknowledges and agrees that the Consultant’s status at all times shall be that of an independent contractor, and that the Consultant may not, at any time, act as a representative for or on behalf of the Company for any purpose or transaction, and may not bind or otherwise obligate the Company in any manner whatsoever without obtaining the prior written approval of the Company therefor. Consultant shall be solely responsible for determining the method, details and means of performing the Services. The Consultant also agrees that during the Consulting Period, the Consultant shall not be entitled to, has no claim to, and will not receive any other rights, fringe benefits, reimbursements, perquisites or other employee benefits from the Company for the Services. The Consultant will be permitted to engage in other outside consulting activities, so long as such activities do not interfere with the performance of the Services and do not violate Section 5 hereof. |
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(b) |
The parties hereby acknowledge and agree that all consulting fees paid pursuant to Section 3 hereof shall represent fees for services as an independent contractor, and shall therefor be paid without any deductions or withholdings taken therefrom for taxes or for any other purpose. Consultant shall file all tax returns and reports required to be filed by Consultant on the basis that Consultant is an independent contractor, rather than an employee, as defined in Treasury Regulation §31.3121(d)-1(c)(2). The Consultant further acknowledges that the Company makes no warranties as to any tax consequences regarding payment of such fees, and specifically agrees that the determination of any tax liability or other consequences of any payment made hereunder is the Consultant’s sole and complete responsibility and that the Consultant will pay all taxes, if any, assessed on such payments under the applicable laws of any Federal, state, local or other jurisdiction and, to the extent not so paid, will indemnify the Company for any taxes so assessed against the Company. |
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(d) |
Inventions. |
(1)The Consultant acknowledges and agrees that all ideas, methods, inventions, discoveries, improvements, work products, developments, software, know-how, processes, techniques, methods, works of authorship and other work product, whether patentable or unpatentable, (A) that are reduced to practice, created, invented, designed, developed, contributed to, or improved with the use of any Company resources and/or within the scope of the Consultant’s work with the Company or that relate to the business, operations or actual or demonstrably anticipated research or development of the Company, and that are made or conceived by the Consultant, solely or jointly with others, during the Consulting Period, or (B) suggested by any work that the Consultant performs in connection with the Company, either while performing the Consultant’s duties with the Company or on the Consultant’s own time, but only insofar as the Inventions are related to the Consultant’s service provided to the Company, shall belong exclusively to the Company (or its designee), whether or not patent or other applications for intellectual property protection are filed thereon (the “Inventions”). The Consultant will keep full and complete written records (the “Records”), in the manner prescribed by the Company, of all Inventions, and will promptly disclose all Inventions completely and in writing to the Company. The Records shall be the sole and exclusive property of the Company, and the Consultant will surrender them upon the termination of the Consulting Period, or upon the Company’s request. The Consultant will assign to the Company the Inventions and all patents or other intellectual property rights that may issue thereon in any and all countries, whether during or subsequent to the Consulting Period, together with the right to file, in the Consultant’s name or in the name of the Company (or its designee), applications for patents and equivalent rights (the “Applications”). The Consultant will, at any time during and subsequent to the Consulting Period, make such applications, sign such papers, take all rightful oaths, and perform all other acts as may be requested from time to time by the Company to perfect, record, enforce, protect, patent or register the Company’s rights in the Inventions, all without additional compensation to the Consultant from the Company. The Consultant will also execute assignments to the Company (or its designee) of the Applications, and give the Company and its attorneys all reasonable
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assistance (including the giving of testimony) to obtain the Inventions for the Company’s benefit, all without additional compensation to the Consultant from the Company, but entirely at the Company’s expense.
(2)In addition, the Inventions will be deemed Work for Hire, as such term is defined under the copyright laws of the United States, on behalf of the Company and the Consultant agrees that the Company will be the sole owner of the Inventions, and all underlying rights therein, in all media now known or hereinafter devised, throughout the universe and in perpetuity without any further obligations to the Consultant. If the Inventions, or any portion thereof, are deemed not to be Work for Hire, or the rights in such Inventions do not otherwise automatically vest in the Company, the Consultant hereby irrevocably conveys, transfers and assigns to the Company, all rights, in all media now known or hereinafter devised, throughout the universe and in perpetuity, in and to the Inventions, including, without limitation, all of the Consultant’s right, title and interest in the copyrights (and all renewals, revivals and extensions thereof) to the Inventions, including, without limitation, all rights of any kind or any nature now or hereafter recognized, including, without limitation, the unrestricted right to make modifications, adaptations and revisions to the Inventions, to exploit and allow others to exploit the Inventions and all rights to xxx at law or in equity for any infringement, or other unauthorized use or conduct in derogation of the Inventions, known or unknown, prior to the date hereof, including, without limitation, the right to receive all proceeds and damages therefrom. In addition, the Consultant hereby waives any so-called “moral rights” with respect to the Inventions. To the extent that the Consultant has any rights in the results and proceeds of the Consultant’s service to the Company that cannot be assigned in the manner described herein, the Consultant agrees to unconditionally waive the enforcement of such rights. The Consultant hereby waives any and all currently existing and future monetary rights in and to the Inventions and all patents and other registrations for intellectual property that may issue thereon, including, without limitation, any rights that would otherwise accrue to the Consultant’s benefit by virtue of the Consultant being an employee of or other service provider to the Company.
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(e) |
Enforcement. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 5 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state. |
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in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. |
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(g) |
Forfeiture. In the event of a final judgment by a court of competent jurisdiction that the Consultant has breached any of the provisions of this Section 5, the Consultant shall forfeit the right to receive any further benefits under this Agreement (including, without limitation, any unpaid Consulting Fees). |
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Governing Law; Dispute Resolution. This Agreement, the rights and obligations of the parties hereto, and all claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of California, without regard to the choice of law provisions thereof. Each of the parties agrees that any dispute between the parties shall be resolved only in the courts of the State of California or the United States District Court for the Central District of California and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing, each of the parties hereto irrevocably and unconditionally (a) submits in any proceeding relating to this Agreement or the Consultant’s services with the Company or any affiliate, or for the recognition and enforcement of any judgment in respect thereof (a “Proceeding”), to the exclusive jurisdiction of the courts of the State of California, the court of the United States of America for the Central District of California, and appellate courts having jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any such Proceeding shall be heard and determined in such California State court or, to the extent permitted by law, in such federal court, (b) consents that any such Proceeding may and shall be brought in such courts and waives any objection that the Consultant or the Company may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (c) agrees that service of process in any such Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at the Consultant’s or the Company’s address as provided in Section 9 hereof, and (d) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of California. The parties acknowledge and agree that in connection with any dispute hereunder, each party shall pay all of its own costs and expenses, including, without limitation, its own legal fees and expenses; provided, however, that if either the Consultant or the Company or its affiliates prevail on all material issues involved in such dispute, the non-prevailing party shall reimburse the prevailing party for all costs (including reasonable attorneys’ fees) incurred in connection with such dispute. |
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Agreement, Consultant agrees to accept the potential application of Code Section 409A and the other tax consequences of any payment made hereunder. |
If to the Consultant:
At the address (or to the facsimile number) shown in the books and records of the Company.
with a copy to (which shall not constitute notice to the Consultant)
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
If to the Company:
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000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Senior Vice President, Human Resources
Facsimile:
Email:
with a copy to (which shall not constitute notice to the Company)
Xxxxxxxx & Xxxxx LLP
000 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
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Severability. To the extent that any provision of this Agreement shall be invalid or unenforceable, it shall be considered deleted herefrom and the remainder of such provision and of this Agreement shall be unaffected and shall continue in full force and effect. |
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Survival. The provisions of Sections 5 and 6 hereof shall survive any termination of the Consulting Period or this Agreement. |
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Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. |
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affiliates providing for restrictive covenants similar to Sections 5 and 6, the provisions of such agreement shall also apply pursuant to its terms. |
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.
XXXXX, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
CONSULTANT
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Consulting Services Agreement Signature Page