CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of the 3rd day of January, 1997, by and between Town & Country Corporation
("Town & Country"), a Massachusetts corporation, and C. William Carey ("Carey").
As used herein, "Town & Country" shall include each of the subsidiaries of Town
& Country Corporation.
WHEREAS, Carey was, prior to the date hereof, employed by Town &
Country in various capacities, including as its Chairman and Chief Executive
Officer.
WHEREAS, Town & Country desires to retain Carey as a consultant for a
period of not less than two years, and especially in connection with the
disposition of certain assets of Town & Country, as more fully set forth herein;
WHEREAS, the parties desire to set forth in this Agreement certain
undertakings by Town & Country and Carey in connection with consulting and other
services to be performed by Carey;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the parties
agree as follows:
1. Consulting Services. For a period of two (2) years following the
date hereof (the "Term"), Carey shall be available to consult with Town &
Country on special projects as may be assigned to Carey by the Board of
Directors of Town & Country Corporation (the "Board") and with respect to such
assignments, Carey shall report directly to the Chairman of the Board. Special
projects may include the disposition of core and non-core assets of Town &
Country, entering into strategic alliances, and entering into other business
arrangements not in the ordinary course. The consulting services described
herein shall be provided by Carey at such times and locations reasonably
requested by Town & Country.
2. Compensation.
(a) Unless otherwise set forth herein, Carey's fee for
assignments undertaken by Carey pursuant to this Agreement shall be
mutually determined by the Board and Carey. Carey's fee shall be
determined on a project-by-project basis, and is expected, where
appropriate, to be based on a percentage of the total consideration
received by Town & Country. In addition to Carey's fee for each
project, Town & Country shall reimburse Carey for all expenses incurred
in connection with the performance of his duties hereunder, as more
fully set forth in Section 3 below.
(b) If Town & Country undertakes any of the following projects
and requests Carey's assistance, Carey shall be compensated therefor on
the following basis:
(i) With respect to disposition of Town & Country real
estate, compensation equal to 2% of gross proceeds;
(ii) With respect to disposition of Town & Country
properties located in the People's Republic of China,
compensation equal to 4% of gross proceeds;
(iii) With respect to disposition of Town & Country
machinery and equipment, including furniture and
fixtures, 5% of gross proceeds;
(iv) With respect to disposition of the Gold Lance
Division of Town & Country, if sold pursuant to any
agreement or letter of intent for the sale entered
into prior to March 31, 1997, 1% of gross proceeds up
to $7.5 million, and 2% of gross proceeds in excess
of $7.5 million; if sold after March 31, 1997, and
not pursuant to any agreement or letter of intent for
the sale entered into prior to March 31, 1997, 4% of
the gross proceeds;
(v) With respect to disposition of Salomon Brothers
preferred stock held by Town & Country, compensation
equal to 4%; of the gross proceeds; and
(vi) In connection with the privatization of Essex
International Public
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Company Limited ("Essex"), a Town & Country
subsidiary based in Thailand, $75,000 plus any
additional fee the Board may determine based on the
time, effort, and success of Carey in effecting the
transaction.
All payments hereunder shall be payable to Carey by wire transfer, in
immediately available funds and according to Carey's instructions
provided to the Company from time to time.
3. Office Space, Personnel and Expenses.
(a) To assist Carey in the performance of his duties
hereunder, during the Term, Town & Country shall provide funds to Carey
for not fewer than two (2) administrative assistants and such other
personnel as Town & Country and Carey may deem necessary or appropriate
(such assistants and other personnel to be selected by Carey) and
office space of a type appropriate for a senior executive of Carey's
position. The office space may be located in a downtown Boston location
selected by Carey (subject to the reasonable consent of the Board). The
direct cost to Town & Country for Carey's personnel and office space
shall be $200,000 during the first year of the Term and $150,000 during
the second year of the Term; excess costs to be borne by Carey. Such
amounts shall be payable to Carey in advance by wire transfer in
immediately available funds and according to the wiring instructions
provided by Carey. Town & Country acknowledges and agrees that in
anticipation of Carey's engagement as a consultant as set forth herein,
Carey has already committed to a two-year lease for office space and
the hiring of personnel for a two-year period and that the $350,000
payable to Carey hereunder shall be guaranteed and shall not be
refundable. The parties agree that such $350,000 payment is a
reimbursement to Carey and that no income tax withholding shall be
made.
(b) Town & Country shall transfer Carey's office furniture
from his office at Town & Country to his new office, and shall provide
office furniture for Carey's administrative assistants. After the Term
is complete, Carey shall have the option to purchase said furniture at
its fair market value, which the parties agree will be the value
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carried on the Company's books at such time.
(c) During the Term, Carey shall be provided the sole and
exclusive use of a new automobile of a make and model appropriate for a
senior executive of Carey's position. The parties acknowledge and agree
that the cost of such automobile, including costs associated therewith
during the Term, is estimated to be approximately $100,000, and shall
payable in advance via wire transfer in immediately available funds.
(d) All reasonable expenses incurred by Carey in carrying out
his duties under this Agreement shall be reimbursed by Town & Country
upon submission of evidence of such expenses by Carey.
4. Independent Contractor Status. Carey agrees to render services to
Town & Country as an independent contractor to, and not as an employee of, Town
& Country. Carey acknowledges and agrees that he shall be an independent
contractor for all purposes including, but not limited to, payroll and tax
purposes, and that he shall not represent himself to be an employee or officer
of Town & Country.
5. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof; provided, however, that this Consulting
Agreement shall not supersede or otherwise affect the Termination and Settlement
Agreement or side letter agreements of even date herewith. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
6. Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by all
parties hereto.
7. Waivers and Consents. The terms and provisions of this Agreement may
be
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waived, or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or provisions. No
such waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
8. Severability. In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
9. Notices. The parties expressly agree that any notices to be given
hereunder shall be in writing and shall be sent by U.S. Registered or Certified
Mail, Return Receipt Requested, or via a delivery service providing evidence of
delivery, addressed to the parties at their addresses set forth below, or at
such other address as either may designate by notice as aforesaid.
Address for Town & Country: Copy to:
Town & Country Corporation Goodwin, Procter & Hoar
25 Union Street Exchange Place - 53 State St.
Chelsea, MA 02150 Boston, MA 02109
Attn: Chairman Attn: Richard E. Floor
Address for Carey: Copy to:
C. William Carey Mintz, Levin, Cohn,
20 Rowes Wharf, PH 8 Ferris, Glovsky and Popeo, P.C.
Boston, MA 02110 One Financial Center
Boston, MA 02111
Attn: Stanford N. Goldman, Jr., Esq.
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10. Assignment. Town & Country may assign its rights and obligations
hereunder to any person or entity who succeeds to all or substantially all of
Town & Country's business or that aspect of Town & Country's business in which
Carey is principally involved. Carey's rights and obligations under this
Agreement may not be assigned by Carey without the prior written consent of Town
& Country.
11. Benefit. All statements, representations, warranties, covenants and
agreements in this Agreement shall be binding on the parties hereto and, in the
case of Town & Country, its parents, subsidiaries and other affiliates, and in
the case of Carey, upon his heirs, executors and administrators; and shall inure
to the benefit of the respective successors and permitted assigns of each party
hereto. Nothing in this Agreement shall be construed to create any rights or
obligations except among the parties hereto, and no person or entity shall be
regarded as a third-party beneficiary of this Agreement.
12. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the Commonwealth of Massachusetts, without giving effect to the conflict of
law principles thereof.
13. Arbitration. Any controversy, dispute or claim arising out of or in
connection with this Agreement, or the breach, termination or validity hereof,
shall be settled by final and binding arbitration to be conducted by an
arbitration tribunal in Boston, Massachusetts, pursuant to the rules of the
American Arbitration Association. The arbitration tribunal shall consist of
three arbitrators. The party initiating arbitration shall nominate one
arbitrator in the request for arbitration and the other party shall nominate a
second in the answer thereto within thirty (30) days of receipt of the request.
The two arbitrators so named shall then jointly appoint the third arbitrator. If
the answering party fails to nominate its arbitrator within the thirty (30) day
period, or if the arbitrators named by the parties fail to agree on the third
arbitrator within thirty (30) days, the office of the American Arbitration
Association in Boston, Massachusetts shall make the necessary appointments of
such arbitrator(s). The decision or award of the arbitration tribunal (by a
majority
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determination, or if there is no majority, then by the determination of the
third arbitrator, if any) shall be final, and judgment upon such decision or
award may be entered in any competent court or application may be made to any
competent court for judicial acceptance of such decision or award and an order
of enforcement. In the event of any procedural matter not covered by the
aforesaid rules, the procedural law of the Commonwealth of Massachusetts shall
govern.
14. Jurisdiction and Service of Process. Any legal action or proceeding
with respect to this Agreement shall be brought in the courts of the
Commonwealth of Massachusetts or of the United States of America for the
District of Massachusetts. By execution and delivery of this Agreement, each of
the parties hereto accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Each of the
parties hereto irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by certified mail, postage prepaid, to the party at its address set
forth in Section 9 hereof.
15. Headings. The section and paragraph headings contained in this
Agreement are for convenience only and shall not be deemed to affect in any way
the language of the provisions to which they refer.
16. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as a
document under seal as of the date first written above.
TOWN & COUNTRY CORPORATION: CONSULTANT:
By: /s/ William Schawbel /s/ C. William Carey
___________________________ ______________________________
Name: William Schawbel C. William Carey
_________________________
Title: Interim President
________________________
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