AGREEMENT
THIS AGREEMENT is made and entered into this 24th day of November, 1993
by and between XXXXX COMPANY, a California Corporation ("Xxxxx"), and XXXX X.
XXXXXX ("Xxxxxx").
Recitals
A. Effective as of January 1, 1987, the parties to this Agreement
entered into a Retainer Agreement, which Agreement was for a term of seven
(7) years, ending on December 31, 1993.
X. Xxxxx desires that the retainer services of Xxxxxx continue to be
available and Xxxxxx is agreeable to Henry's request.
X. Xxxxx and Xxxxxx, by this Agreement, desire to restate the basis
upon which Xxxxxx will continue for the term of this Agreement to make his
services available to Xxxxx.
NOW, THEREFORE, it is mutually agreed as follows:
1. Xxxxxx shall hold himself available to Xxxxx, for the term of this
Agreement, to render advisory services with the status of an independent
contractor.
2. Xxxxxx shall not accept employment as an officer, director,
employee, advisor or in any other capacity with any business entity which is
engaged in substantially the same business as Xxxxx and which would be
considered competition to Xxxxx within the marketing areas presently occupied
or which may hereafter be occupied by Xxxxx.
3. This Agreement is for an initial term of three (3) years, starting
on the 1st day of January, 1994 and shall continue thereafter on a
year-to-year basis, subject to being terminated on the end of any year by
Xxxxx or Xxxxxx by giving written notice to the other at least ninety (90)
days prior to the end of the year.
4. Xxxxx agrees to pay Xxxxxx Eight Thousand Three Hundred
Thirty-Three and Thirty-Three One-Hundredths Dollars ($8,333.33) per month.
It is mutually understood that one-half of said monthly payment is
compensation for services to be rendered by Xxxxxx and one-half is
consideration for his covenant not to compete.
Any out-of-pocket expenses incurred by Xxxxxx in connection with
any service rendered by Xxxxxx shall be reimbursed by Xxxxx.
5. During the term of this Agreement, upon reasonable prior notice,
Xxxxxx will make himself available for consulting at such time, such place
and with such persons as Xxxxx may designate. Any consultation services
shall not require more than 118 hours in any quarter. Nothing in this
Agreement shall be deemed to limit the right of Xxxxxx to travel or
to require him to reside at any particular place.
Xxxxx shall have the right to request Xxxxxx to render consulting
work in excess of 118 hours per quarter, for which Xxxxxx shall be
compensated at the rate of Two Hundred Ten Dollars ($210.00) per hour for
such services, with the understanding that if Xxxxxx should work less than
118 hours in any one quarter, he would not receive overtime compensation in a
succeeding quarter until he had made up the deficiency in hours in the
preceding quarter or quarters.
6. This Agreement will terminate on the death or physical or mental
disability of Xxxxxx. Physical or mental disability shall be determined by a
physician selected by Xxxxx and Xxxxxx shall make himself available for such
an examination on reasonable notice. In the event Xxxxxx or Xxxxx should
question the determination by the physician selected by Xxxxx, either, on
written notice to the other, may request a second examination by a physician
selected by Xxxxxx. If the determinations of the two physicians differ as to
the physical or mental disability of Xxxxxx as it affects his ability to
render services as a consultant, then the two physicians shall select a third
physician to examine Xxxxxx and the decision as to disability of any two of
the physicians shall be determinate of the issue. If the physician appointed
by Xxxxx and the physician appointed by Xxxxxx cannot agree on the selection
of a third physician, the selection shall be made by the presiding judge of
the Superior Court of the State of California in and for the County of Los
Angeles. In the event no decision as to disability can be reached by the
three physicians, then a new physician will be selected following the
procedures for the selection of physicians as outlined above.
7. This Agreement may be terminated by Xxxxx on written notice to
Xxxxxx for failure on the part of Xxxxxx to render services within a
reasonable time on requests that are within his capabilities and are in
compliance with the provisions of paragraph 5 hereof. In the event Xxxxx
should seek to terminate this Agreement by reason of the failure of Xxxxxx to
perform the services called for under this Agreement, Xxxxx must first give
Xxxxxx WRITTEN NOTICE THEREOF and Xxxxxx shall have thirty (30) days in which
to cure any default specified in such notice. On Xxxxxx'x failure to cure
such default or defaults within said thirty-day period, Xxxxx may terminate
this Agreement and shall have no further obligations to Xxxxxx.
8. It is understood that Xxxxx can request that Xxxxxx continue as a
member of Henry's Board of Directors and its executive committee.
9. During the term of this Agreement, Xxxxxx agrees with Xxxxx that
Xxxxxx will not, unless authorized in writing by Xxxxx, use for himself or
for others, or publish or disclose to any third party any information,
knowledge or data which is of a confidential nature, or any "trade secrets"
of Xxxxx. For the purpose of this Agreement, the term "trade secrets"
includes all discoveries, inventions, improvements and ideas relating to any
process, formula, machine, device, manufacture, composition of matter, plan
or design, whether patentable or not, which Xxxxx discloses to Xxxxxx or of
which Xxxxxx is made aware during the term of this Agreement and which relate
to Henry's coating, sealing and polyurethane foam business, or in which Xxxxx
is interested. It is agreed that it would be difficult to fully
compensate Xxxxx for damages for breach of the obligations of Xxxxxx under
this paragraph. Accordingly, Xxxxxx specifically agrees that Xxxxx, and any
of its subsidiaries or successors, shall be entitled to temporary and
permanent injunctive relief to enforce such obligations and that such relief
may be granted without the necessity of proving actual damages. This
provision with respect to injunctive relief shall not, however, diminish the
right of Xxxxx or any of its subsidiaries or successors to claim and recover
damages in addition to injunctive relief. Nothing contained in this
paragraph shall restrict the right of Xxxxxx to consult with others in
matters involved in the adhesive business.
10. Neither party to this Agreement shall have the right to assign the
same, without the consent of the other first being had. Notwithstanding the
foregoing, Xxxxxx shall have the right to assign the payments provided herein
to a trust created by him for the benefit of his spouse and children. Such
an assignment of payments shall not relieve Xxxxxx in any respect from the
performance of his obligations under this Agreement.
11. In the event of any litigation between the parties for breach of or
to enforce any provision or right hereunder, the prevailing party shall be
entitled to recover its attorneys' and expert witnesses' fees and costs, in
addition to such other relief as the court may award.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
XXXXX COMPANY
by /s/ WARNER X. XXXXX /s/ XXXX X. XXXXXX
---------------------------- -------------------------
Warner X. Xxxxx XXXX X. XXXXXX
Chairman and Chief Executive
Officer
