CONSULTING AGREEMENT
THIS IS A CONSULTING AGREEMENT ("Agreement") dated February 1, 2000,
between Crown Cork & Seal Company, Inc., a Pennsylvania corporation, ("Company")
and Xxxxxx X. Xxxxx ("Consultant").
BACKGROUND
WHEREAS, the Consultant has been a long-time executive of the Company and
has retired;
WHEREAS, the Consultant has special knowledge, expertise and experience
concerning the business and operations of the Company; and
WHEREAS, the Company desires to have continuing access to the Consultant's
knowledge, expertise and experience, and the Consultant is willing to provide
the same to the Company.
TERMS
In consideration of the mutual covenants contained herein and intending to
be legally bound hereby, the Company and the Consultant agree as follows:
1. Consulting Services. The Consultant is hereby engaged to consult with
and provide the Company advice on any issue pertaining to the business or
operations of the Company, its subsidiaries, divisions or affiliates, as may be
requested from time to time by the Chief Executive Officer, President or any
Executive Vice-President of the Company (the "Consulting Services"); provided
that the Consultant will not be required to devote more than 625 hours per year
in the performance of the Consulting Services. If the hours worked are in excess
of the Agreement, the fee will be adjusted accordingly. The Consultant will
devote his best efforts and skills in rendering the Consulting Services.
2. Term of the Agreement. The term of this Agreement shall be from February
1, 2000 to January 31, 2002 ("Agreement Period"). Either party may terminate
this Agreement immediately upon written notice if the other party hereto is in
breach of any material term or condition of this Agreement and such breach has
not been cured within 30 days following written notice of such breach.
Notwithstanding the cure period provided in the preceding paragraph, the
Company may terminate this Agreement immediately upon the gross negligence or
willful misconduct of the Consultant in the performance of the Consulting
Services.
This Agreement shall terminate automatically upon the death or "disability"
of the Consultant. For purposes of this Agreement, "disability" shall be defined
as the inability of the Consultant due to a physical or mental health condition
to provide the Consulting Services for a period of 90 consecutive days.
3. Compensation and Expenses. As compensation for the Consulting Services,
the Company will pay the Consultant an aggregate fee of $150,000, payable in two
equal installments. The first installment will be paid upon the signing of this
Agreement and the second installment will be paid on the first anniversary of
this Agreement provided that this Agreement has not been terminated prior to
such anniversary date.
The Consultant will retain and maintain his current Company automobile
under the existing Corporate Automobile Policy for the duration of this
Agreement.
The Company shall also reimburse the Consultant for all reasonable and
necessary expenses incurred by the Consultant in connection with performance of
the Consulting Services. To obtain reimbursement, the Consultant must first
submit to the Company invoices, receipts or other appropriate documentation of
the expenses in accordance with the Company's reimbursement policy. Payment of
such expenses shall be made by the Company within thirty (30) days of receipt of
such documentation.
All payments made by the Company to the Consultant under this Agreement
shall be subject to the withholding of such amounts, if any, relating to tax and
other deductions as the Company may reasonably determine it should withhold
pursuant to any applicable law or regulation.
4. Confidential Information. Except as required in the performance of the
Consulting Services, the Consultant shall not, during or after the Agreement
Period, use for himself or others, or disclose to others, any confidential
information including without limitation, trade secrets, data, know-how, design,
developmental or experimental work, Company relationships, computer programs,
proprietary information bases and systems, data bases, customer lists, business
plans, financial information of or about the Company or any of its affiliates,
customers or clients, unless authorized in writing to do so by the Company, but
excluding any information generally available to the public. The Consultant
understands that this undertaking applies to the information of either a
technical or commercial or other nature and that any information not made
available to the general public is to be considered confidential.
5. Return of Documents and Property. Upon the termination of this
Agreement, or at any time upon the request of the Company, the Consultant (or
his heirs or personal representative) shall deliver to the Company (a) all
documents and materials containing confidential information relating to the
business or affairs of the Company or any of its affiliates, customers or
clients and (b) all other documents, materials and other property belonging to
the Company or its affiliates, customers or clients that are in the possession
or under the control of the Consultant.
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6. Noncompetition. By and in consideration of the compensation to be paid
by the Company hereunder, the Consultant agrees that during the Agreement
Period, the Consultant shall not directly or indirectly, own, manage, operate,
join, control or participate in the ownership, management, operation or control
of, or be employed or otherwise connected in any manner with, including without
limitation as a consultant, any business which at any relevant time during said
period directly or indirectly competes with the Company or any of its affiliates
in any country in which the Company does business. Notwithstanding the
foregoing, the Consultant shall not be prohibited during the non-competition
period described above from being a passive investor where he owns not more than
five percent (5%) of the outstanding capital stock of any publicly-held company.
The Consultant further agrees that during said period, the Consultant shall not,
directly or indirectly, solicit or induce, or attempt to solicit or induce, any
employee of the Company or any of its affiliates to terminate employment or hire
any employee of the Company or any of its affiliates.
7. Enforcement: The Consultant acknowledges that (i) the Consultant's work
for the Company will give him access to the confidential affairs and proprietary
information of the Company; (ii) the covenants and agreements of the Consultant
contained in Sections 4, 5 and 6 are essential to the business and goodwill of
the Company; and (iii) the Company would not have entered into this Agreement
but for the covenants and agreements set forth in Sections 4, 5 and 6. The
Consultant further acknowledges that in the event of his breach or threat of
breach of Sections 4, 5 or 6 of this Agreement, the Company, in addition to any
other legal remedies which may be available to it, shall be entitled to
appropriate injunctive relief and/or specific performance in order to enforce or
prevent any violations of such provisions, and the Consultant and the Company
hereby confer jurisdiction to enforce such provisions upon the courts of any
jurisdiction within the geographical scope of such provisions.
8. Independent Contractor. In providing Consulting Services under this
Agreement, it is mutually understood and agreed that the Consultant is acting
and performing as an independent contractor and not an employee or agent of the
Company. The Consultant shall not make any representations to being an employee
or agent of the Company and shall pay all federal, state and local taxes which
shall be become due on any money paid to the Consultant by the Company under the
terms of this Agreement. Consultant hereby acknowledges and agrees that he is
not entitled to participate in or receive coverage under any benefit plan of the
Company with respect to the performance of the Consulting Services under this
Agreement.
9. Personal Performance of Work and Nonassignability. The services provided
under this Agreement shall all be provided personally by the Consultant. The
Consultant may not assign any rights or performance obligations under this
Agreement to any other party. Any attempt to make such an assignment will be
void.
10. Compliance with Applicable Law. In providing services under this
Agreement, the Consultant shall comply with all applicable federal, state and
local laws and regulations.
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11. Notices. All notices given pursuant to this Agreement shall be in
writing and shall be directed as follows (or to such other address as a party
shall designate by notice hereunder):
For the Consultant: For the Company:
Xxxxxx X. Xxxxx Chief Executive Officer
0000 Xxxxxxx Xxxx Xxxxx Xxxx & Seal Company, Inc.
Xxxxxxxxxxx, XX 00000-0000 Xxx Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000
12. Binding Effect. This Agreement shall inure to the benefit of and shall
be binding upon the Company and the Consultant and their respective heirs,
executor, personal representatives, successors and permitted assigns.
13. Waiver. Any term or provision of this Agreement may be waived in
writing at any time by the party entitled to the benefit thereof. The failure of
either party at any time to require performance of any provision of this
Agreement shall not affect such party's right at a later time to enforce such
provision. No consent or waiver by either party to any default or to any breach
of a condition or term in this Agreement shall be deemed or construed to be a
consent or waiver to any other breach or default.
14. Survival. Anything contained in this Agreement to the contrary
notwithstanding, the provisions of Sections 4, 5, 6 and 7, and the other
provisions of this Agreement (to the extent necessary to effectuate the survival
of Sections 4, 5, 6 and 7), shall survive termination of this Agreement.
15. Entire Agreement. This Agreement contains the entire agreement between
the parties relative to its subject matter, superseding all prior agreements or
understandings of the parties relating thereto. This Agreement may be amended,
modified or superseded only by a written instrument executed by both of the
parties hereto.
16. Invalidity. The fact that any portion of this Agreement shall be found
invalid or unenforceable shall not effect the validity or enforceability of the
remainder of this Agreement. If any clause or provision hereof is determined by
any court of competent jurisdiction to be unenforceable because of its scope or
duration, the parties expressly agree that such court shall have the power to
reduce the duration and/or restrict the scope of such clause or provision to the
extent necessary to permit enforcement of such clause or provision in reduced or
restricted form.
17. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without reference to principles of conflict of
laws.
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18. Execution. This Agreement may be executed in counterparts and will be
valid even though the signatures of all parties do not appear on the same page.
CROWN CORK & SEAL COMPANY, INC.
/s/ Xxxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx
CONSULTANT
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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