13
EXHIBIT 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and
entered into as of the 31st day of January, 2000, between
Harold's Stores, Inc., an Oklahoma corporation ("Harold's" or the
"Company"), and PrimaTech Corporation, a Delaware corporation
("Consultant"), with its principal place of business at ▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS
A. Harold's has acquired all of the outstanding shares of
common stock of CMT Enterprises Inc. ("CMT").
B. Harold's had utilized the services of CMT for, among
other things, the manufacture of merchandise for Harold's.
C. Consultant is willing to arrange for ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇") to be available to enable Consultant to perform the
services for Harold's contemplated by this Agreement.
D. Harold's wishes to obtain the benefit of Consultant's
knowledge and expertise to, among other things, assist it with
the business of CMT, and to help it improve its manufacturing
operations, merchandise development and sourcing.
E. Consultant is willing to provide such assistance to
Harold's in accordance with the terms and conditions set forth
below.
TERMS AND CONDITIONS
1. Retention. The Company hereby retains the Consultant,
and the Consultant hereby accepts such retention by the Company,
for the Term, in accordance with the terms and conditions
hereinafter set forth.
2. Term of Retention. Unless earlier terminated as
hereinafter provided, the term of the Consultant's retention
under this Consulting Agreement (the "Term") shall be for a
period of two (2) years, commencing February 1, 2000, and ending
January 31, 2002. In the event that the Consultant continues in
the retention of the Company after the end of the Term, then
unless otherwise agreed to by the Consultant and the Company in
writing, the Consultant's continued retention by the Company
shall, notwithstanding anything to the contrary expressed or
implied herein, be terminable by either party at will. It is
expressly understood and agreed that the Company does not now
have, nor hereafter shall have, any obligation to continue the
Consultant in its retention after the Term ends, and that the
Consultant does not how have, nor hereafter shall have, any
obligation to continue his retention by the Company after the
Term ends.
3. Duties. The Consultant shall be retained for the
principal purpose of advising the Company with respect to the
management and utilization of CMT to enable it to continue to
obtain merchandise production in the manner in which merchandise
was procured for Harold's by CMT. In addition, Consultant shall
advise and make recommendations to the Company concerning its
manufacturing operations, merchandise development and sourcing,
and assist in such activities to the extent requested to do so by
the Company. Consultant shall devote such time to its services
hereunder as necessary to accomplish Consultant's
responsibilities and duties as set forth herein. Consultant
shall cause ▇▇▇▇▇ (for purposes herein ▇▇▇▇▇ shall be referred to
as "Consultant's Employee") and no one else without Company's
prior consent, to perform the consulting services for Harold's
hereunder.
In connection with Consultant's performance of the
foregoing duties and responsibilities, Consultant or Consultant's
Employee may enter into agreements and commitments and incur
liabilities on behalf of the Company in connection with selecting
a factory to cut, sew and manufacture goods for the Company,
commit to purchase trim for Company's goods and purchase sample
yardage of fabric. The procurement of fabric (other than sample
yardage) by Consultant or Consultant's Employee on behalf of
Company must be preceded by written or e-mail authorization from
the Company. In addition Consultant and Consultant's Employee
may make recommendations to the Company with respect to
withholding payment of invoices from Company's vendors,
terminating business relationships that the Company maintains,
and hiring or firing employees of Company.
4. Location of Services. Consultant's services shall
principally be performed at Harold's premises in New York City,
and, as required from time to time, in Dallas, Texas and may from
time to time require international travel.
5. Fees.
(a) As fees for the consulting services to be
performed by Consultant under this Consulting Agreement
during the Term, the Corporation shall pay Consultant a Base
Fee of Four Hundred Five Thousand Dollars ($405,000.00) per
annum, payable at the rate of Thirty-three Thousand Seven
Hundred Fifty ($33,750.00) Dollars per month, payable on the
15th day of each month, with the first monthly payment to be
made on February 18, 2000 and the remaining payments made on
the 15th of the month beginning March 15, 2000.
(b) Consultant shall be entitled to receive an
Incentive Fee to be paid on or before April 15 for the
preceding fiscal year of Company at the same time as the
Company pays bonuses to its senior executives. The
Incentive Fee payable to Consultant shall be based fifty
percent (50%) on the performance of Company on a company-
wide basis, and fifty percent (50%) on the performance of
Company's manufacturing operation utilizing CMT's business
and operations. The Incentive Fee shall be computed and
paid in accordance with the plan attached hereto as Exhibit
A.
6. Independent Contractor Status. Consultant shall be
treated by the Company as an independent contractor for all
purposes. Consultant shall be responsible for payment of the
salary of all of its employees and all related taxes, its own
insurance and, except as provided herein, all of its own
expenses. Consultant shall be responsible for determining the
times and locations of its services, consistent with its
obligation to fulfill all of its duties hereunder. Consultant
and Consultant's Employee shall supply their own vehicles,
housing and personal equipment while performing services for the
Company in New York.
7. Benefits. During the Term, Consultant shall not
participate in any fringe benefit programs provided by the
Company for its employees.
8. Expenses of Consultant. During the Term, the Company
shall, subject to and in compliance with such policies of the
Company from time to time in effect, reimburse Consultant for all
costs and expenses reasonably incurred by Consultant in
furtherance of the Company's business (including mileage
reimbursement for travel in connection with the Company's
business), upon the Corporation's receipt of appropriate
documentation thereof. Company shall reimburse Consultant for
coach air travel within the continental United States, and
business class air travel outside of the continental United
States.
9. Termination Upon Death of Consultant's Employee. In
the event of the death of Consultant's Employee during the Term,
this Agreement shall terminate effective immediately, however,
the Company shall continue to pay the Base Fee through the last
day of the month in which death occurs with any Incentive Fee pro
rated to the end of such month, and Consultant's unreimbursed
expenses. Any Incentive Fee shall be calculated and paid in
accordance with paragraph 5(b).
10. Termination for Cause.
(a). By the Company.
(i) In addition to any other rights or remedies
available pursuant to this Consulting Agreement, this Agreement
may be terminated by the Company for "Cause," as defined in
paragraph 10(a)(ii), by the affirmative vote of two-thirds of
Harold's entire Board of Directors at a duly held meeting, upon
written notice to Consultant specifying the grounds of
termination. Consultant shall be afforded notice of such meeting
at least seven (7) days in advance, and shall be permitted to
attend and to speak on the subject of the proposed termination.
In the event the Company terminates this Agreement for Cause,
Consultant shall be entitled to receive the accrued but unpaid
Base Fee to the date of the termination, and Consultant's
unreimbursed expenses.
(ii) For purposes of this paragraph 10(a),
"Cause" shall consist of:
(1) chronic alcohol abuse or chronic drug
abuse by Consultant's Employee;
(2) commission by Consultant's Employee of a
felony crime;
(3) substantial misappropriation for
personal use of assets of the Company or any of its subsidiaries
by Consultant's Employee;
(4) the willful engaging by Consultant in
conduct which is materially injurious to the Company or any of
its subsidiaries, monetarily or otherwise; or
(5) breach of any material provision of this
Agreement, provided that the Company has provided to Consultant
reasonably detailed specification in writing of the alleged
refusal to perform and Consultant has not cured such refusal
within thirty (30) days;
For purposes of this paragraph 10(a), no act, or failure to act,
on Consultant's part shall be considered "willful" unless done,
or omitted to be done, by Consultant's Employee not in good faith
and without reasonable belief that the action or omission was in
the best interest of the Company.
(b) By Consultant.
(i) In addition to any other rights or remedies
available pursuant to this Consulting Agreement, this Agreement
may be terminated by Consultant for "Good Reason," as defined in
subparagraph 10(b)(ii) below, by giving notice to Harold's in
writing specifying the effective date of termination. In the
event Consultant terminates this Agreement for Good Reason,
Consultant shall be entitled to receive (A) the Base Fee for the
remainder of the Term payable monthly at the time it would have
been payable absent termination, (B) any Incentive Fees through
the remainder of the Term calculated and paid in accordance with
paragraph 5(b), and (C) Consultant's unreimbursed expenses.
(ii) For purposes of this paragraph 10, "Good
Reason" shall be the occurrence (without Consultant's express
written consent) of:
(1) failure to timely pay to Consultant any
amount due hereunder, which failure is not cured within ten (10)
days after notice of such failure; or more than three (3) such
failures, whether or not cured within ten (10) days after notice;
(2) the assignment to Consultant of any
duties materially and adversely inconsistent with the terms of
this Agreement;
(3) Consultant's removal from, or failure to
afford Consultant the ability to perform, the duties and
responsibilities contemplated under this Agreement; or
(4) The relocation of the site from which
Consultant is to perform its principal duties to any place
outside of the New York City or the Dallas, Texas metropolitan
areas (excluding occasional international travel).
(c) In the event a dispute over the existence of Cause
or Good Reason, the matter shall be resolved by binding
arbitration as provided in paragraph 22 below. Until the final
resolution of any dispute, the Company shall continue to make all
payments provided hereunder, in full and without delay, offset or
reduction of any kind, in which event Consultant shall continue
to perform its duties hereunder. If the dispute is resolved in
favor of the Company, the Company may set off the amount of any
damages awarded through arbitration against amounts otherwise
payable under that certain Promissory Note dated February 18,
2000 in original principal amount of $2,544,799.42. The exercise
of such right of set-off by the Company will not constitute an
event of default under such Promissory Note. Neither the
exercise nor the failure to exercise such right of set-off will
constitute an election of remedies or limit the Company in any
manner in the enforcement of any other remedies that may be
available to it.
11. Termination for Disability. If as a result of
incapacity due to physical or mental illness or injury,
Consultant's Employee shall have been absent from his duties
preventing Consultant from performing its services hereunder for
135 consecutive days, the Company shall be entitled to terminate
this Agreement. Thirty (30) days after giving written notice
(which may occur before or after the end of such 135 day period,
but which shall not be effective earlier than the last day of
such 135 day period), the Company may terminate this Agreement,
provided Consultant's Employee is unable to resume his consulting
duties at the conclusion of such notice period. In the event
this Agreement is terminated as a result of Consultant's
Employee's disability, Consultant shall receive from the Company,
the Base Fee and Incentive Fee prorated through the effective
date of termination.
12. Termination By Company Without Cause. The Company by
the affirmative vote of two-thirds of Harold's entire Board of
Directors at a duly held meeting, may terminate this Agreement at
any time without cause, effective thirty (30) days after written
notice to Consultant of the Board's determination. In the event
this Agreement is terminated by the Company Without Cause,
Consultant shall be entitled to receive the Base Fee for the
remainder of the Term, payable monthly at the time it would have
been payable absent the termination, plus Incentive Fee prorated
through the effective date of termination pro rated for the
period from the first day of Harold's fiscal year to the
effective date of termination (or, if this occurs in the first
year of this Agreement, 50% of Consultant's Base Fee prorated as
described above), and Consultant's unreimbursed expenses. Any
Incentive Fee shall be calculated and paid in accordance with
paragraph 5(b).
13. Non-Competition and Non-Solicitation. Consultant
agrees that during the Term and for a period of one (1) year
following the termination of this Agreement, except for a
termination by Consultant for "Good Reason":
(a) Consultant (and Consultant's Employee) will not,
without the prior written consent of Company, directly or
indirectly, personally, or as principal, agent, employee,
shareholder, partner, lender, consultant, advisor or trustee of
any company, firm, enterprise or business, solicit business from
or render services to any multi-store retail specialty business
utilizing stores, catalogs and/or Internet to sell men's and
women's apparel that has any retail store in any state where
Company has a store, and states that the Company has targeted for
opening new stores in the study prepared by the Green Group.
(b) Consultant (and Consultant's Employee) will not,
without the prior written consent of Company, directly or
indirectly, personally, or as principal, agent, employee,
shareholder, partner, consultant, advisor or trustee of any
company, firm, enterprise or business, solicit any customer,
supplier, licensee or business relation of Company to cease doing
business with, or reduce the amount of business it does with,
Company, whether or not Consultant or Consultant's Employee had
personal contact with such persons.
(c) Except for employees previously terminated by
Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇, Consultant (and Consultant's Employee)
will not, without the prior written consent of Company, directly
or indirectly, personally or as principal, agent, employee,
shareholder, partner, consultant, advisor or trustee of any
company, firm, enterprise or business, (A) induce or attempt to
induce any employee of the Company or one of its subsidiaries to
leave the employ of the Company or one of its subsidiaries, (B)
in any way interfere with the relationship between the Company or
one of its subsidiaries and any employee of the Company or one of
its subsidiaries, or (C) employ or otherwise engage as an
employee, independent contractor or otherwise, any employee of
the Company or one of its subsidiaries.
14. Confidentiality. Consultant agrees to regard and
preserve as confidential at all times during its retention by the
Company and thereafter all Confidential Information (as defined
below) pertaining to the Company's business that has been or may
be obtained by Consultant in the course of this retention by
Company whether Consultant or Consultant's Employee has such
information in memory or in writing or other physical form.
Neither Consultant nor Consultant's Employee will, without
written authority from Company to do so, use for its or his
benefit or purposes or disclose to others for any reason, either
during the Term or thereafter, except as required by the services
hereunder, any Confidential Information connected with the
business of Company. This provision shall not apply to
Confidential Information known to Consultant or Consultant's
Employee prior to Consultant's retention hereunder (except that
it shall apply to merchandise development, design libraries and
fabrics developed for the Company), or after the Confidential
Information has been voluntarily disclosed to the public,
independently developed and disclosed by others, or otherwise
enters the public domain through lawful means.
For purposes of this Agreement, "Confidential Information"
shall mean any information relating to the business of Company or
any of its subsidiaries or affiliates that has not previously
been publicly released by duly authorized representatives of
Company and shall include (but shall not be limited to) Company
information encompassed in all plans, proposals, computer
programs, business, marketing and sales plans and strategies,
financial information, costs, research information, pricing
information, customer and vendor identity, records, files and
information, and all methods, concepts information, knowledge and
ideas reasonably related to the business of Company.
15. Indemnification. In the event Consultant or
Consultant's Employee (for purposes of this paragraph 15,
collectively "Consultant") is made a party to any threatened,
pending or complete action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by the Company against Consultant or Consultant's Employee), by
reason of the fact that it or he is or was performing consulting
services pursuant to this Agreement, the Company shall indemnify
Consultant against all expenses (including reasonable attorney
fees), judgments, fines and amounts paid in settlement, as
actually and reasonably incurred by Consultant in connection
therewith. Further, while Consultant and Consultant's Employee
shall at all times use their best efforts to faithfully discharge
their duties and responsibilities under this Agreement,
Consultant and Consultant's Employee shall not be held liable to
the Company for errors or omissions in connection with performing
its duties hereunder made in good faith where Consultant and
Consultant's Employee have not exhibited willful or deliberate
malfeasance or performed criminal and fraudulent acts which
damage the business of the Company or acted outside the scope of
their authority as provided herein.
Within 20 days (or such earlier time as might be required to
avoid prejudicing Company's position) after receipt of notice of
commencement of any action, suit or proceeding evidenced by
service of process or other legal pleading, Consultant shall give
Company written notice thereof together with a copy of such
claim, process or other legal pleading, and Company shall have
the right to undertake the defense thereof by representatives of
its own choosing (subject to approval of such representatives by
Consultant which consent shall not be unreasonably withheld) and
at its own expense; provided that Consultant may participate in
the defense with counsel of its own choice, the fees and expenses
of which counsel shall be paid by Consultant.
In the event that Company, by the 30th day after receipt of
notice of any such claim (or, if earlier, by the 10th day
preceding the day on which an answer or other pleading must be
served in order to prevent judgment by default in favor of the
person asserting such claim), does not elect to defend against
such claim, Consultant will (upon further notice to Company) have
the right to undertake the defense, compromise or settlement of
such claim on behalf of and for the account and risk of Company,
subject to the right of Company to assume the defense of such
claims at any time prior to settlement, compromise or final
determination thereof.
Notwithstanding the foregoing, Company shall not settle any
claim without the consent of Consultant unless such settlement
involves only the payment of money and the claimant provides to
Consultant a release from all liability in respect of such claim.
If the settlement of the claim involves more than the payment of
money, Company shall not settle the claim without the prior
written consent of Consultant, which consent shall not be
unreasonably withheld.
Consultant and Company will each cooperate with all
reasonable requests of the other.
16. No Prior Agreements. The parties hereby each
represents and warrants to the other that the execution of this
Agreement and the performance of each party's duties hereunder
will not violate or be a breach of any agreement with any
employer, client or any other person or entity. Each party
agrees to indemnify the other for any claim, including, but not
limited to, attorneys' fees and expenses of investigation, by any
such third party that such third party may now have or may
hereafter come to have based upon or arising out of any non-
competition agreement, invention or secrecy agreement between
Consultant (and/or Consultant's Employee), or the Company, and
such third party which was in existence as of the date of this
Agreement.
17. Assignment; Binding Effect. Consultant understands
that it has been selected for retention by the Company on the
basis of personal qualifications, experience and skills of
Consultant's Employee. Consultant agrees, therefore, it cannot
assign all or any portion of its performance under this
Agreement. The Company shall not assign this Agreement without
the prior written consent of Consultant which consent shall not
unreasonably be withheld, provided that Company can assign this
Agreement to a subsidiary of Company. Subject to the preceding,
this Agreement shall be binding upon, inure to the benefit of and
be enforceable by the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns.
18. Complete Agreement; No Waiver. Consultant (and/or
Consultant's Employee) on the one hand, and the Company on the
other hand, each has no oral representations, understandings or
agreements with the other, or any of their respective officers,
directors or representatives covering the same subject matter as
this Agreement. This written Agreement is the final, complete
and exclusive statement of expression of the agreement between
the Company and Consultant and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented
by evidence of any prior or contemporaneous oral or written
agreements. This agreement may not be later modified except by a
further writing signed by a duly authorized officer of the
company and Consultant, and no term of this Agreement may be
waived except by writing signed by the party waiving the benefit
of such term. Failure to insist upon strict compliance with any
of the terms, covenants, or conditions of this Consulting
Agreement shall not be deemed a waiver, nor shall any waiver or
relinquishment of any right or power under this Consulting
Agreement at any one or more times be deemed waiver or
relinquishment of such right or power at any other time or times.
19. Notice. All notices, requests, demands and other
communications hereunder shall be given in writing and shall be:
(a) personally delivered; (b) sent by telecopier, facsimile
transmission or other electronic means of transmitting written
documents; or (c) sent to the parties at their respective
addresses indicated herein by registered or certified U.S. mail,
return receipt requested and postage prepaid, or by private
overnight mail courier service. The respective addresses to be
used for all such notices, demands or requests are as follows:
To the Company: Harold's Stores,
Inc.
765 Asp
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Chief Financial
Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy
simultaneously sent to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, III
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Consultant: PrimaTech
Corporation
Route 1, Box ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copy simultaneously sent to: ▇▇▇▇▇ & Tisman
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If personally delivered, such communication shall be deemed
delivered upon actual receipt. If electronically transmitted
pursuant to this paragraph 19, such communication shall be deemed
delivered the next business day after transmission (and sender
shall bear the burden of proof of delivery); if sent by overnight
courier pursuant to this paragraph 19, such communication shall
be deemed delivered upon receipt; and if sent by U.S. mail
pursuant to this paragraph 19, such communication shall be deemed
delivered as of the date of delivery indicated on the receipt
issued by the relevant postal service, or, if the addressee fails
or refuses to accept delivery, as of the date of such failure or
refusal. Any party to this Agreement may change its address for
the purposes of this Agreement by giving written notice thereof
in accordance with this paragraph 19.
20. Severability. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement
shall be deemed valid and operative and, so far as is reasonable
and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative.
21. Certain Interpretive Matters.
(a) Unless the context otherwise requires, (i) all
references to paragraphs or Exhibits are to paragraphs or
Exhibits to this Agreement, (ii) each term defined in this
Agreement has the meaning assigned to it, (iii) "or" is
disjunctive but not necessarily exclusive, (iv) words in the
singular include the plural and vice versa, and (v) all
references to "$" or dollar amounts will be to lawful currency of
the United States of America.
(b) No provision of this Agreement will be interpreted
in favor of, or against, any of the parties hereto by reason of
the extent to which any such party or its counsel participated in
the drafting thereof or by reason of the extent to which any such
provision is inconsistent with any prior draft hereof or thereof.
(c) The paragraph headings herein are for reference
purposes only and are not intended, and shall not be utilized, in
any way to describe, interpret, define or limit the extent or
intent of the Agreement or of any part hereof.
(d) The word "including" means "including, without
limitation," and does not limit the preceding words or terms.
(e) All words used in this Agreement will be
construed to be of such gender or number as the circumstances
require.
(f) References to "Company" shall include all
subsidiaries of the Company as the circumstances require.
22. Resolution of Disputes.
(a) Arbitration. Any dispute, controversy or claim
arising out of or relating to the Agreement or the performance by
the parties of its terms shall be settled by binding arbitration
held in St. Louis, Missouri in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in
effect, except as specifically otherwise provided in this
paragraph 22. This paragraph 22 shall be construed and enforced
in accordance with the Federal Arbitration Act, notwithstanding
any other choice of law provision in this Agreement.
Notwithstanding the foregoing, any party hereto may, in its
discretion, apply to a court of competent jurisdiction for
equitable relief. Such an application shall not be deemed a
waiver of the right to compel arbitration pursuant to this
paragraph 22.
(b) Arbitrators. The panel to be appointed shall
consist of three arbitrators, one selected by each party, and the
third mutually acceptable to the arbitrators selected by the
parties
(c) Procedures. The arbitrators shall allow such
discovery as the arbitrators determine appropriate under the
circumstances and shall resolve the dispute as expeditiously as
practicable, and if reasonably practicable, within ninety (90)
days after the selection of the arbitrators, The arbitrators
shall give the parties written notice of the decision, with the
reasons therefor set out, and shall have thirty (30) days
thereafter to reconsider and modify such decision if any party so
requests within ten (10) days after the decision.
(d) Authority. The arbitrators shall have authority
to award relief under legal or equitable principles, including
interim or preliminary relief, and to allocate responsibility for
the costs of the arbitration and to award recovery of attorneys
fees and expenses in such manner as is determined to be
appropriate by the arbitrators, provided the arbitrators shall
not have the power or authority to award consequential,
incidental or punitive damages.
(e) Entry of Judgment. Judgment upon the award
rendered by the arbitrators may be entered in any court having in
personam and subject matter jurisdiction. Company, Consultant
and Consultant's Employee hereby submit to the in personam
jurisdiction of the Federal and State courts in St. Louis,
Missouri for the purpose of confirming any such award and
entering judgment thereon, and waive any objections they might
have to lack of personal jurisdiction, or based on improper venue
or inconvenient forum.
(f) Confidentiality. All proceedings under this
paragraph 22, and all evidence given or discovered pursuant
hereto, shall be maintained in confidence by all parties and by
the arbitrators.
(g) Continued Performance. The fact that the dispute
resolution procedures specified in this paragraph 22 shall have
been or may be invoked shall not excuse any party from performing
its obligations under this Agreement and during the pendency of
any such procedure all parties shall continue to perform their
respective obligations in good faith, subject to any rights to
terminating this Agreement that may be available to any party.
Notwithstanding the foregoing, Consultant may suspend performance
if Company fails to pay the Compensation provided hereunder as
and when due under the terms of this Agreement.
23. Governing Law. This Agreement shall in all respects be
governed and construed in accordance with the laws of the State
of New York applicable to contracts made and wholly to be
performed in New York.
24. Counterparts. This Agreement may be executed
simultaneously in two (2) or more counterparts, each of which
shall be deemed an original and all of which together shall
constitute but one and the same instrument.
25. Attorney's Fees. In the event of any litigation or
arbitration arising under or in connection with this Agreement,
the prevailing party shall be entitled to reasonable attorneys'
fees as determined by the court or arbitration panel, as the case
may be. Each party to this Agreement represents and warrants
that it has been represented by counsel in the negotiation and
execution of the Agreement, including without limitation the
provisions set forth in this paragraph 25.
26. Survival. The termination of this Agreement shall not
affect the obligations of the parties under paragraphs 9, 10, 11,
12, 13, 14, 15 and 22 above, to the extent such provisions
reasonably contemplate post-termination effectiveness, which
obligations shall expressly survive.
[END OF PAGE - SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
COMPANY:
Harold's Stores, Inc.
By: __/s/ ▇. ▇▇▇▇▇▇
Powell__________
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
President
CONSULTANT:
PrimaTech Corporation
By: __/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
__________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President
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