CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered
into this 22nd day of February 2001, by and between William J. Avery (the
"Consultant") and Crown Cork & Seal Company, Inc., (the "Company").
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.
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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 of the Company (the "Consulting Services"); provided
that the Consultant will not be required to devote, on average more than 35
hours per month in the performance of the Consulting Services. The Consultant
will devote his best efforts and skills in rendering the Consulting Services.
2. Term of the Agreement.
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The term of this Agreement shall be from February 23, 2001 to February 22, 2003
("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, theCompany 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.
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As compensation for the Consulting Services, the Company will pay the Consultant
an aggregate fee of $400,000, 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 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. Independent Contractor.
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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.
5. Services to Third Parties.
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Subject to the terms and conditions of the Retirement Agreement entered into by
and between the Consultant and the Company as of January 4, 2001, the Consultant
retains the right to perform business consulting services for third parties.
6. Personal Performance of Work and Nonassignability.
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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.
7. Compliance with Applicable Law.
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In providing services under this Agreement, the Consultant shall comply with all
applicable federal, state and local laws and regulations.
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8. Notices.
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All notices, and other communications provided for herein that one party intends
to give to the other party shall be in writing and shall be considered given
when mailed or couriered, return receipt requested or personally delivered,
either to the party or at the address set forth below (or to such other address
as a party shall designate in accordance with this Section 8):
If to the Consultant: If to the Company:
William J. Avery Crown Cork & Seal Company, Inc.
417 Gwynedd Valley Drive One Crown Way
Gwynedd Valley, PA 19437 Philadelphia, PA 19154
Attention: Chief Executive Officer
9. Binding Effect.
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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.
10. Waiver.
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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.
11. Entire Agreement.
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This Agreement contains the entire agreement between the parties relative to its
subject matter, and fully supersedes any and all prior oral or written
agreements or understandings between the parties pertaining to the subject
matter hereof. This Agreement may be amended, modified or superseded only by a
written instrument executed by both of the parties hereto.
12. Invalidity.
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If any provision of this Agreement or the application thereof to either party
shall be invalid or unenforceable to any extent, the remainder of this Agreement
shall not be affected thereby and shall be enforceable to the fullest extent of
the law. 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.
13. Governing Law.
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Except to the extent such laws are superseded by federal law, this Agreement
shall be governed bythe laws of the Commonwealth of Pennsylvania without
reference to principles of conflict of laws.
14. Execution.
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This Agreement may be executed in counterparts and will be valid even though the
signatures of allparties do not appear on the same page.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
CROWN CORK & SEAL COMPANY, INC.
/s/ John W. Conway
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JOHN W. CONWAY, CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
CONSULTANT
/s/ William J. Avery
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WILLIAM J. AVERY