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EXHIBIT 10(d)
AGREEMENT
This Agreement is entered into this 13th day of November, 1999, by and
between The Xxxxxxx-Xxxxxxxx Company ("Xxxxxxx-Xxxxxxxx") and Xxxxxx X. Xxxxxx
(hereinafter "Commes").
RECITALS:
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A. Commes has decided to retire from his position with Xxxxxxx-Xxxxxxxx;
and
X. Xxxxxxx-Xxxxxxxx desires to enter into a covenant not to compete with
Commes and to obtain certain releases from Commes.
NOW THEREFORE, in consideration of the promises set forth herein and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. CONSIDERATION. In consideration of Commes entering into the covenant
not to compete set forth in Section 2 hereof and the releases set forth
in Section 3 hereof, Xxxxxxx-Xxxxxxxx agrees as follows:
a. As soon as practicable following your retirement,
Xxxxxxx-Xxxxxxxx shall pay Commes, in a lump sum, the amount
of Thirty Four Thousand and 00/100 Dollars ($34,000.00); and
b. With respect to the Restricted Stock granted under the 1994
Stock Plan pursuant to the Amended and Restated Restricted
Stock Grant with a Date of Vesting of January 28, 2001, the
number of shares of Restricted Stock granted thereunder shall
be prorated to fifty percent (50%) of such number, that being
the portion of the Restriction Period completed as of the date
of Commes' retirement. Thereafter, all of Commes' rights to
the prorated Restricted Stock shall be determined in
accordance with such Amended and Restated Restricted Stock
Grant.
2. COVENANT NOT TO COMPETE. For a period of two (2) years commencing on
March 17, 1999 and ending on March 16, 2001, Commes agrees that he will
not, directly or indirectly, as principal, agent, employer, employee,
shareholder (except ownership of less than one percent (1%) of the
number of shares outstanding of any securities which are listed for
trading on any securities exchange), partner, director or otherwise
engage or be interested in any business engaged in the manufacture or
sale of paint, coatings or other products that are intended to be
marketed in competition with paint, coatings or other products
manufactured and sold by Xxxxxxx-Xxxxxxxx, its affiliates or
subsidiaries
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anywhere in the world. If Commes violates the provisions of this
Section 2, Commes agrees that: (1) Xxxxxxx-Xxxxxxxx shall be entitled
to obtain a court order preventing Commes from continuing such
violations; (2) all obligations of Xxxxxxx-Xxxxxxxx pursuant to Section
1(b) above shall terminate and Xxxxxxx-Xxxxxxxx shall have no
obligation to deliver any shares pursuant to the Restricted Stock Grant
described therein; and (3) Xxxxxxx-Xxxxxxxx shall have the right to
pursue all other legal and equitable remedies which may be available.
The parties hereto further acknowledge and agree that the scope of this
Section 2 is fair and reasonable in light of Commes' position with
Xxxxxxx-Xxxxxxxx and the nature and scope of Xxxxxxx-Xxxxxxxx'
international business operations; provided however, it is the mutual
intention of the parties hereto, that if a court should determine that
the scope of this Section 2 is too broad in any manner, then the court
should narrow its effectiveness to the broadest extent permitted by law
and enforce the provisions of this Section 2 as narrowed.
3. RELEASE. XXXXXXX-XXXXXXXX, ON BEHALF OF ITSELF, ITS CURRENT OR FORMER
SUBSIDIARIES, THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, INSURERS, SUCCESSORS AND ASSIGNS AND COMMES,
ON BEHALF OF HIMSELF, HIS HEIRS, AGENTS, SUCCESSORS, ASSIGNS AND
REPRESENTATIVES, HEREBY MUTUALLY WAIVE, RELEASE AND DISCHARGE EACH
OTHER (AND THE PERSONS AND ORGANIZATIONS PREVIOUSLY IDENTIFIED IN THIS
SENTENCE), WITH RESPECT TO ANY AND ALL CAUSES OF ACTION, CLAIMS,
LIABILITIES AND DEMANDS OF ANY NATURE, WHETHER KNOWN OR UNKNOWN,
RESULTING FROM OR BASED UPON, DIRECTLY OR INDIRECTLY, HIS EMPLOYMENT
RELATIONSHIP OR CONDUCT WITH THE ABOVE DESCRIBED PARTIES AND WITH
RESPECT TO COMMES INCLUDING, BUT NOT LIMITED TO, ANY ACTIONS, CLAIMS,
LIABILITIES OR DEMANDS CONCERNING, BASED UPON OR ARISING OUT OF THE
EMPLOYMENT AGREEMENT BETWEEN THE PARTIES DATED MARCH 16, 1979, AS
AMENDED BY THE AMENDMENT TO EMPLOYMENT AGREEMENT DATED FEBRUARY 22,
1996, ANY ALLEGED WRONGFUL TERMINATION, BREACH OF EMPLOYMENT CONTRACT,
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING,
DEFAMATION, WORKERS' COMPENSATION, INTENTIONAL OR NEGLIGENT INFLICTION
OF EMOTIONAL DISTRESS, OR DISCRIMINATION BASED ON RACE, NATIONAL
ORIGIN, SEX, RELIGION, AGE OR HANDICAP, (INCLUDING, WITHOUT LIMITATION,
CLAIMS OR RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967
AS AMENDED OR SIMILAR STATE LAWS). THIS RELEASE DOES NOT COVER ANY
RIGHTS EMPLOYEE MAY HAVE TO RECEIVE BENEFITS PURSUANT TO THE TERMS AND
CONDITIONS OF THE XXXXXXX-XXXXXXXX COMPANY SALARIED EMPLOYEES' REVISED
PENSION INVESTMENT PLAN, THE XXXXXXX- XXXXXXXX COMPANY EMPLOYEE STOCK
PURCHASE AND SAVINGS PLAN, THE XXXXXXX-XXXXXXXX COMPANY DEFERRED
COMPENSATION SAVINGS PLAN, THE XXXXXXX-XXXXXXXX COMPANY KEY MANAGEMENT
DEFERRED COMPENSATION PLAN AND THE XXXXXXX-XXXXXXXX COMPANY PENSION
INVESTMENT EQUALIZATION PLAN.
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4. ENTIRETY. This Agreement embodies the entire understanding and
agreement between the parties relative to the subject matter hereof.
Conditions and representations, oral or written, expressed or implied,
with reference to the subject matter hereof, that are inconsistent with
this Agreement shall be of no force or effect unless agreed to in
writing and signed by both parties hereto.
5. RIGHT TO REVIEW. Commes represents and agrees that:
a. He fully understands his right to have this Agreement reviewed
by and to discuss all aspects of this Agreement with his
private attorney and that to the extent, if any, he desires,
he has availed himself of this right;
b. He has been given a period of not less than twenty-one (21)
days to review and consider this Agreement and he may use as
much of this twenty-one (21) day period as he desires prior to
signing it;
c. He is voluntarily entering into this Agreement; and
d. He may revoke this agreement during the seven (7) day period
immediately following the date he executes it.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
THE XXXXXXX-XXXXXXXX COMPANY
By: /s/ X.X. Xxxxxxx By: /s/ Xxxxxx X Xxxxxx
Title: Vice President - Human Resources Printed Name: Xxxxxx X. Xxxxxx
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