Exhibit 10.31
AGREEMENT TO PROVIDE CONSULTING SERVICES
between
Xxxx X. Xxx
and
TODAY'S MAN, INC.
This Agreement ("Agreement") is made this 30th day of November, 2001 by
and between Xxxx X. Xxx, residing at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000
("Consultant" or "Fox") and Today's Man, Inc., with an address at Moorestown
West Corporate Center, 000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("TM").
Fox and TM are each a party to this Agreement and are collectively referred to
hereunder as the "Parties".
NOW, THEREFORE, in consideration of the promises, agreements and
undertakings set forth herein, and other good and valuable consideration which
the Parties deem adequate, TM desires to retain Fox as an independent contractor
to consult on special projects and Fox desires to serve in such capacity on the
terms and conditions set forth herein, Fox and TM each agree to be legally bound
to all the terms and conditions set out in this Agreement as follows:
1. Definitions. As used in this Agreement, any reference to TM shall
include its predecessors and successors, and all of its past,
present and future shareholders, directors, officers, employees
(other than Fox), representatives, attorneys, agents, assigns,
controlling corporations, affiliates and subsidiaries; and any
reference to Fox shall include his respective heirs,
administrators, representatives, executors, legatees, successors,
attorneys, agents and assigns.
2. Consulting Duties. Commencing February 3, 2002, and ending on
January 21, 2003 Fox will, upon request of the Chairman of the
Board or CEO of TM, make himself available from time to time to
perform such consulting assignments as shall be mutually agreed
upon. Fox's consulting obligation to TM shall not be deemed to
preclude him from consulting with, or becoming employed by, any
other entity.
3. Proprietary Information. At all times both during and after this
Agreement, Fox shall not, except with TM's express prior written
consent, directly or indirectly, communicate, disclose or divulge
to any individual, sole proprietorship, joint venture,
partnership, corporation, association or any governmental or
non-governmental entity or authority (collectively "Person") or
use for his own benefit or the benefit of any Person, any
confidential or proprietary knowledge or information (no matter
when or how acquired), concerning the conduct and detail of the
business of TM.
4. Nature of Consulting Relationship. Fox shall perform his
consulting duties in his capacity as an independent contractor
and not an employee of TM. Fox shall be free to exercise his
discretion and independent judgment as to method and means of
performance of his services pursuant to this Agreement and shall
in no sense be considered to be an employee. Fox will devote such
business time and effort to the services set forth hereunder to
fully, timely and properly complete all assigned projects and
tasks that he chooses to undertake. Fox will perform on a best
effort basis and shall be provided with appropriate personnel and
equipment as to be agreed.
5. Non disparagement. Fox and TM both agree that they will make no
statements calculated or intended to be harmful or derogatory
concerning each of them or their respective officers, agents, or
employees, except as required under subpoena or other
governmental compulsion.
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6. Non solicitation. Fox agrees that for the term of this Agreement,
he will not solicit or seek to persuade any employee, consultant
or independent contractor of TM to discontinue his/her employment
or relationship with TM, or to become employed or engaged in any
business directly or indirectly competitive with TM.
7. Payment to Fox.
a. In consideration for the promises, agreement and
undertakings set forth herein, TM agrees to pay the sum of
Three Hundred Twenty-Nine Thousand Dollars ($329,000.00)
such amount payable on a pro rata basis on the first day of
each month and on the first day of each succeeding calendar
month through and including January 1, 2003.
b. In addition to any other remedies available to it,
upon receipt of competent evidence of any breach of
this Agreement by Xxx, XX may cease payment under
this paragraph, provided it first notifies Fox and
affords an opportunity for discussion and/or
remediation within thirty (30) days of such notice.
c. If TM breaches this Agreement by missing any payment
required hereby (a payment which is not made within fifteen
(15) days of written notice from Fox to TM - Attention CFO
is a missed payment) then in his sole discretion, Fox may
xxx to enforce the terms of this Agreement.
8. Entire Agreement. This Agreement contains and constitutes the
entire understanding and agreement between the parties hereto and
supersedes and cancels all previous negotiations, agreements,
commitments, and writings in connection herewith.
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9. Amendment. This Agreement shall be binding upon Fox and TM and
may not be abandoned, supplemented, amended, changed, or modified
in any manner, orally or otherwise, except by an instrument in
writing of concurrent or subsequent date, signed by Fox and a
duly authorized representative of TM.
10. Construction. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey.
The captions herein are inserted for convenience and do not
constitute a part of this Agreement and shall not be admissible
for the purposes of providing the intent of the parties.
/s/ Xxxx X. Xxx 11/30/01
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Xxxx X. Xxx Date
For Today's Man, Inc.
/s/ Xxxxx X. Xxxxxxx 11/30/01
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Xxxxx X. Xxxxxxx, EVP & CFO Date
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