RELEASE AND NON-COMPETITION AGREEMENT
RELEASE AND NON-COMPETITION AGREEMENT
This RELEASE AND NON-COMPETITION AGREEMENT (the “Agreement”) is made by and between Xxxx X. Xxxxx (“Xxxxx”), for himself and his heirs, executors, successors and assigns, and Xxxxx Corning, and each of its subsidiaries, predecessors, successors, affiliated entities and past, present and future officers, directors, employees, agents, attorneys and assigns (all collectively, “XXXXX CORNING” for purposes of this Agreement);
WHEREAS, it being the desire of the parties, for good and valuable consideration, (i) to memorialize certain non-competition, non-solicitation and non-disclosure agreements between the parties and (ii) to amicably resolve all areas of actual and potential claims, disputes, and responsibilities, arising out of Xxxxx’x employment and retirement from employment with XXXXX CORNING, in accordance with the terms set forth below;
NOW, THEREFORE, in consideration of the mutual promises and obligations recited herein:
1. Xxxxx agrees that his last date of employment with XXXXX CORNING will be April 18, 2002 (the “Retirement Date”), and further agrees that he is resigning from all Boards of Directors for all corporations owned in whole or in part by XXXXX CORNING, including the Xxxxx Corning Board of Directors, as of the date this Agreement is executed by all parties.
2. Xxxxx fully and forever releases and discharges XXXXX CORNING from any and all claims and actions of every kind, nature and description, including any claim under the Age Discrimination In Employment Act as amended, the Older Worker’s Benefit Protection Act, breach of express or implied contract, violation of ERISA, and/or all other claims or derivative claims of tortuous conduct, statutory or constitutional violation, whether in law or equity, known or unknown, of every kind, nature and description, including all claims arising out of or in connection with Xxxxx’x employment or retirement from employment with XXXXX CORNING, up to the date of the signing of this Agreement, excluding only: (a) claims for indemnification or relating to insurance coverage for services performed as an employee, officer or director, and/or claims for indemnification under paragraph 3 of this Agreement, and (b) claims to enforce any provisions of this Agreement.
3. XXXXX CORNING forever releases and discharges Xxxxx from any and all claims and actions of every kind, nature and description, whether in law or equity, known or unknown, up to the date of the signing of this Agreement, excluding only claims to enforce any provisions of this Agreement. XXXXX CORNING shall also indemnify and hold Xxxxx harmless from and against any claims, charges, liabilities, obligations, or actions asserted against Xxxxx which arise out of or relate in any way to Xxxxx’x employment with XXXXX CORNING, this Agreement, or any services provided by Xxxxx under this Agreement. Such indemnification is in addition to any existing indemnification rights and shall extend to any and all liabilities, expenses, costs, damages and/or losses of any kind, including attorney fees and all expenses in connection with the defense against any claim.
4. Xxxxx agrees to cooperate and assist in the prosecution and defense of any lawsuit or other adversarial proceeding presently pending or which may in the future be filed by or against XXXXX CORNING. Xxxxx also agrees, upon request, to cooperate and assist XXXXX CORNING when dealing with its creditors and their Committees. Xxxxx further agrees to make himself available for reasonable consulting assistance to XXXXX CORNING’S Chief Executive Officer and/or Chairman, as requested. Xxxxx shall be entitled to reimbursement from XXXXX CORNING for any reasonable costs and expenses incurred by him in providing such cooperation, assistance, or consulting, together with a daily consulting fee in an amount equal to a per diem amount based on Xxxxx’x final salary at the time of his retirement.
5. Xxxxx agrees that for a period of five (5) years beginning on his Retirement Date, he will not directly or indirectly: (i) induce or attempt to induce any employee of XXXXX CORNING to leave the employ of XXXXX CORNING or in any way interfere with the relationship between XXXXX CORNING and any employee thereof; or (ii) induce or attempt to induce any customer, supplier, licensee or other business relation of XXXXX CORNING to cease doing business with XXXXX CORNING, or in any way interfere with the relationship between such customer, supplier, licensee or business relation of XXXXX CORNING.
6. Xxxxx acknowledges that in the course of his employment with XXXXX CORNING he acquired confidential and proprietary information regarding XXXXX CORNING’S operations, assets, liabilities, businesses and practices, and Xxxxx understands and agrees that he (a) will keep such information including all XXXXX CORNING files, information, and materials confidential at all times; (b) will not disclose or communicate such XXXXX CORNING information to any person or persons unless first authorized in writing by XXXXX CORNING; and (c) will not make use of such information on his own behalf or on the behalf of any other person, persons or entities unless he first obtains authorization from XXXXX CORNING in writing. In view of the nature of Xxxxx’x employment and the nature of the XXXXX CORNING’S information that Xxxxx has received and generated during the course of his employment, Xxxxx agrees that any unauthorized disclosure to any person or persons of such XXXXX CORNING information would cause irreparable damage to XXXXX CORNING, and therefore, XXXXX CORNING shall be entitled to seek an appropriate injunction and legal remedies in a court of appropriate jurisdiction. If required by operation of law to disclose any such information, or in the course of defense or prosecution of any action, Xxxxx may do so provided that he first notifies XXXXX CORNING’S General Counsel, in writing via fax and U.S. mail, within 24 hours of his receipt of the underlying court order/subpoena (enclosing same), in order to provide XXXXX CORNING with the opportunity to respond to said subpoena/court order.
7. Xxxxx agrees that during the remainder of his employment and for a period of five (5) years thereafter, he will not, directly or indirectly, engage in, be engaged by (including engagement for consulting or advising), provide services for or have any interest in, any other person, firm, corporation or entity which conducts any activity competitive with the business of XXXXX CORNING; provided however, that nothing contained herein shall restrict Xxxxx from owning 1% or less of the corporate securities of any competitor of the Company where these securities are listed on any national securities exchange or traded actively in the national over-the-counter market. Xxxxx further agrees that he will not at any time engage in any form of conduct, or make any statements or representations, that disparage or otherwise impair the reputation, goodwill or business interests of XXXXX CORNING, its management, directors or officers.
8. Xxxxx recognizes the broad scope of the foregoing covenants, but expressly agrees that they are reasonable in light of the worldwide scope of the business conducted by XXXXX CORNING. If any court or tribunal of competent jurisdiction shall refuse to enforce the foregoing covenants because the time limit applicable thereto is deemed unreasonable, it is expressly understood and agreed that such covenants shall not be void, but that for the purpose of such proceedings and in such jurisdictions such time limitation shall be deemed to be reduced to the extent necessary to permit enforcement of the covenants. If any court or tribunal of competent jurisdiction shall refuse to enforce any or all of the foregoing covenants because they are more extensive (whether as to geography, the scope of business or otherwise) than is deemed reasonable, it is expressly understood and agreed between the parties hereto that such covenants shall not be void, but that for the purpose of such proceedings and in such jurisdictions, the restrictions contained herein (whether as to geography, the scope of business or otherwise) shall be deemed to be reduced to the extent necessary to permit enforcement of the covenants.
9. In consideration for the promises set forth in this Agreement, XXXXX CORNING agrees to provide Xxxxx or his estate with the following: (a) $95,000 per year, payable monthly in arrears, for each of the first three years following the Retirement Date; and (b) $75,000 per year, payable monthly in arrears, for each of the fourth and fifth years following the Retirement Date.
10. Xxxxx acknowledges and agrees that he has had adequate time to read and review this Agreement, and was advised to consult with legal counsel. Xxxxx acknowledges that he was given a period of 21 days within which to consider this Agreement before signing it. Xxxxx also understands that during the seven-day period following his execution of this Agreement that he may revoke same, and that this Agreement will not become effective until the seven-day revocation period has expired without his exercise of his right to revoke.
11. XXXXX CORNING represents and warrants that the officer executing this Agreement has full authority to sign and bind the Corporation.
IN WITNESS WHEREOF, Xxxxx has executed this Agreement, consisting of three pages and eleven numbered paragraphs, as his free act and deed this 19th day of June 2002.
| /s/ Xxxx X. Xxxxx | |
| Xxxx X.Xxxxx | |
On this 19th day of June 2002, Xxxx X. Xxxxx personally appeared before me and has executed this Release and Non-Competition Agreement as his free act and deed.
| /s/ Xxxxxx X. Xxxxx | |
| Notary Public | |
| Xxxxx Corning: | My Commission Expire: Dec. 15, 2004 |
| Commission #1287358 | |
| /s/ Xxxxxx Xxxxx,Xx. | |
| By: Xxxxxx Xxxxx, Xx., | |
| Senior Vice President, Human Resources | |
On this 17th day of July 2002, Xxxxxx Xxxxx, Xx., personally appeared before me and has executed this Release and Non-Competition Agreement as his free act and deed.
| /s/ Xxxxxxxxx Xxxxxxxx | |
| Notary Public | |
| My Commission Expires: 7/23/06 |
