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EXHIBIT 2.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 4th day of
November, 1997 and effective as of the Effective Time (as defined in the Merger
Agreement (defined below)) by and between Consolidated Stores Corporation, a
Delaware corporation (the "Company"), and Philip L. Carter ("Consultant"). In
the event the Merger (defined below) is not consummated, this Agreement shall be
null and void.
W I T N E S S E T H:
WHEREAS, the Company, MBC Consolidated Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of the Company ("Sub") and
Mac Frugal's Bargains - Close-Outs Inc., a Delaware corporation ("Mac Frugal's")
have entered into an Agreement and Plan of Merger dated as of the date hereof
(the "Merger Agreement"); and
WHEREAS, Consultant prior to the Effective Time (as defined in the
Merger Agreement) served as the President and Chief Executive Officer of Mac
Frugal's; and
WHEREAS, the execution and delivery of this Agreement is contemplated by
the parties in connection with the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
1. Consulting Period. The Company shall engage Consultant on the terms
and conditions set forth herein for a term of six (6) months, commencing as of
the Effective Time (as defined in the Merger Agreement) and continuing through
and until July 31, 1998; provided, however, that the Company, in its sole
discretion, may, upon 30 days written notice to Consultant, terminate this
Agreement. The term of this Agreement is hereinafter referred to as the
"Consulting Period."
2. Consulting Services. During the Consulting Period, Consultant shall
provide the Company, at such times and as may be requested by the Company, with
advice and recommendations concerning various matters respecting the business of
Mac Frugal's, including, without limitation, advice and recommendations as to
business arrangements, customers and the operations of Mac Frugal's. At the
request of the Company, Consultant shall meet periodically with the Company's
officers or such other persons as may be designated by the Company for the
purpose of providing the consulting services as provided herein. Consultant will
be reimbursed for his reasonable business expenses incurred in connection with
this Agreement provided that such expenses result from providing consulting
services hereunder as requested by the Company and that Consultant submits
documentation of such expenses in accordance with Company policy. Consultant
will receive 48-hour prior notice of consulting services that will require
travel by him outside of the State of California and will not be required to
travel outside the greater Los Angeles area for more than five days during any
consecutive 4-week period. Airline travel required of
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Consultant in connection with this Agreement will be at a class equivalent to
that used by the Chief Executive Officer of the Company.
3. Payments. As consideration for the obligations of Consultant under
this Agreement, the Company shall pay the aggregate amount of Nine Hundred
Seventy Thousand Dollars ($970,000), payable in equal weekly installments in
arrears, to Consultant, with no other payments or benefits due to Consultant.
Such weekly payments shall commence as of the Effective Time (as defined in the
Merger Agreement) and continue through and until July 31, 1998 regardless of
whether this Agreement is terminated by the Company pursuant to Section 1
hereof.
4. Severable Provisions. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable in any jurisdiction shall
nevertheless be binding and enforceable.
5. Binding Agreement. The rights and obligations of the Company and
Consultant under this Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of the Company and the heirs, estate and
personal representatives of Consultant.
6. Waiver. Either party's failure to enforce any provision or provisions
of this Agreement shall not in any way be construed as a waiver of any such
provision or provisions as to future violations thereof, nor prevent that party
thereafter from enforcing each and every other provision of this Agreement. The
rights granted the parties herein are cumulative and the waiver by a party of
any single remedy shall not constitute a waiver of such party's right to assert
all other legal remedies available to that party under the circumstances.
7. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof. It may not be changed
orally but may be changed only by an agreement in writing signed by the party
against whom enforcement is sought.
8. Notices. All notices, requests, demands and other communications
under this Agreement must be in writing and shall be deemed duly given, unless
otherwise expressly indicated to the contrary in this Agreement, (i) when
personally delivered, (ii) upon receipt of a telephonic facsimile transmission
with a confirmed telephonic transmission answer back, (iii) three (3) days after
having been deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid, or (iv) one (1) business day after having
been dispatched by a nationally recognized overnight courier service, addressed
to the parties or their permitted assigns at the following addresses (or at such
other address or number as is given in writing by either party to the other) as
follows:
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To the Company: Consolidated Stores Corporation
300 Phillipi Road
Columbus, Ohio 43228-8707
Facsimile No.: 614-278-6762
Attention: General Counsel
With a copy to: Benesch, Friedlander, Coplan & Aronoff LLP
2300 BP America Building
200 Public Square
Cleveland, Ohio 44114-2378
Facsimile No.: (216) 363-4588
Attention: Michael Wager, Esq.
To Consultant: Philip L. Carter
10520 Wilshire Boulevard #702
Los Angeles, California 90024
9. Governing Law; Jurisdiction and Venue. This Agreement shall be
construed under and governed by the laws of the State of California without
regard to the principles of conflicts of laws. The parties hereto consent to the
jurisdiction of the courts of the State of California and to venue within the
State of California.
10. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, may be settled by arbitration in Los
Angeles, California, in accordance with the commercial arbitration rules of the
American Arbitration Association then pertaining; provided, however, that any
such arbitration procedure shall not be binding on the parties absent their
written agreement to the determination of the arbitrator. Nothing in this
Section 10 shall be construed so as to deny any party the right and power to
seek and obtain any other remedy available to such party in equity or at law.
11. Counterparts. This Agreement may be executed in multiple identical
counterparts, which when taken together, shall constitute a single instrument.
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IN WITNESS WHEREOF, the Company and Consultant have caused this
Consulting Agreement to be executed as of the date first above written.
CONSOLIDATED STORES CORPORATION
By:_________________________________
Name:____________________________
Title:___________________________
CONSULTANT
____________________________________
Philip L. Carter
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