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EXHIBIT 10(b)
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT ("Agreement") is made and entered into
effective as of the 1st day of May, 2000 (the "Effective Date") between The
Sherwin-Williams Company, located at 101 Prospect Avenue, N.W., Cleveland, Ohio
44115, an Ohio corporation ("Sherwin-Williams") and John G. Breen located at
18800 North Park Boulevard, Shaker Heights, Ohio 44122 ("Consultant").
RECITAL
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Consultant and Sherwin-Williams desire to enter into an agreement
pursuant to which Consultant would be retained by Sherwin-Williams for the
purpose of engaging in community and business-related activities which enhance
the reputation and otherwise further the interests of Sherwin-Williams (the
"Services") during the Term hereof pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. APPOINTMENT AND SERVICES. Sherwin-Williams hereby appoints Consultant
to perform the Services and Consultant hereby accepts such appointment
pursuant to the terms and conditions of this Agreement. The Services
which Consultant shall perform pursuant to this Agreement shall
include, but not be limited to, developing, facilitating and/or
continuing existing business contacts and relationships which may be
beneficial to Sherwin-Williams' business, engaging in community
activities and events which may enhance Sherwin-Williams' reputation in
the community and such other matters as Sherwin-Williams may reasonably
request from time to time.
2. TERM. The term of this Agreement shall commence on the Effective Date
and shall continue until December 31, 2004 (the "Term").
3. COMPENSATION AND EXPENSE REIMBURSEMENT.
a. As compensation for the Services, Consultant shall receive an annual
fee payment during each year of the Term at the following times and in
the following amounts:
Payment Date Fee Amount
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May 1, 2000 $126,000.00
January 1, 2001 $138,600.00
January 1, 2002 $152,500.00
January 1, 2003 $167,700.00
January 1, 2004 $184,500.00
Collectively, such fee amounts shall be referred to as the
"Fees". Notwithstanding the foregoing, the payment of Fees
hereunder shall be accelerated and all Fees with respect to
the remaining period of the Term shall become immediately due
and payable: (i) to Consultant, upon the occurrence of a
change of control event described in the Rights Agreement
between The Sherwin-Williams Company and The Bank of New York,
as successor rights agent, originally dated April 23, 1997 at
any time prior to the expiration of the Term; or (ii) to
Consultant's estate, in the event of Consultant's death prior
to the
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expiration of the Term. In the event of Consultant's
"Disability" at any time prior to the expiration of the Term,
payment of the Fees shall continue in accordance with the
schedule set forth above. For purposes of this Section 3(a),
"Disability" shall mean incapacity due to physical or mental
illness or injury which causes Consultant to be unable to
perform the Services for one hundred eighty (180) consecutive
calendar days.
b. Sherwin-Williams shall reimburse Consultant for the expenses
associated with any air fare, whether first class, business or
coach, associated with performance of his Services hereunder.
Subject to availability and upon approval of the Chairman,
Consultant shall also be entitled to use of the
Sherwin-Williams' corporate jet for travel in connection with
performance of the Services. Except as otherwise provided
above, Consultant shall be responsible for each and every
other expense incurred in connection with performance of the
Services.
c. Consultant is deemed to be self-employed, an independent
contractor and not an employee; and accordingly, unless
otherwise required by law, no sums are contemplated to be
withheld from Consultant's compensation to cover the payment
of income taxes, FICA (social security), FUTA (unemployment
compensation) or other taxes. Consultant agrees to file all
required federal, state and local income tax and other tax
returns (including, without limitation, all required
declarations of estimated tax) covering Consultant's
compensation hereunder. Consultant agrees to pay all such
taxes and contributions when due; and Consultant hereby
indemnifies Sherwin-Williams and holds it harmless from and
against any and all loss, cost and liability whatsoever
incurred by or claimed against Sherwin-Williams for any
failure of Consultant to comply herewith.
4. RELATIONSHIP.
a. No contract of employment, partnership, joint venture or any
other relationship except that of independent contractor shall
be deemed to exist between Sherwin-Williams and Consultant as
a consequence of this Agreement. Consultant is left free to
pursue whatever proper and legitimate means he chooses in
keeping with good business practice. Consultant shall at all
times comply with all applicable laws, rules and regulations
and shall guard the reputation of Sherwin-Williams in
performing his duties hereunder. Consultant shall use such
time, skill and energies as Consultant sees fit, exercising
Consultant's own judgment with respect thereto. Consultant
shall supply, at Consultant's expense, all tools necessary for
the completion of the Services, except as provided in Section
3(b) with respect to transportation.
b. Consultant is not authorized to obligate Sherwin-Williams or
create any binding relationship between Sherwin-Williams and a
third party; any attempt to do so shall have no effect.
c. As an independent contractor, Consultant shall not be eligible
to participate, or otherwise accrue any new or additional
benefits, and specifically waives participation and/or the
right to receive benefits of any sort, in any employee benefit
plan, program or arrangement maintained by Sherwin-Williams
for the benefit of its employees.
d. The relationship between Sherwin-Williams and Consultant is
non-exclusive. Both parties may perform services for others
during the term hereof.
5. CONFIDENTIALITY. In addition to any other obligations of Consultant for
confidentiality with respect to Sherwin-Williams' information,
Consultant shall treat as confidential property and not disclose to
others during or subsequent to the Term of this Agreement, except as is
necessary to perform this Agreement, (and then only on a confidential
basis satisfactory to Sherwin-Williams),
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any information (including any technical information, experience or
data) regarding the Services or Sherwin-Williams' plans, project plans,
specifications, drawings, programs, plants, sites, processes, products,
costs, equipment, operations, formulas, marketing matters, pricing or
customers which may come within Consultant's knowledge in the
performance of this Agreement, without in each instance securing the
prior written consent of Sherwin-Williams. Nothing above, however,
shall prevent Consultant from disclosing to others or using in any
manner information which Consultant can show:
a. has been published and has become part of the public domain
other than by acts, omissions or fault of the Consultant; or
b. has been furnished or made known to Consultant by third
parties (other than those directly or indirectly for or on
behalf of Sherwin-Williams) as a matter of legal right without
restrictions on its disclosure.
The foregoing obligations shall survive the termination or expiration
of the Agreement.
6. ASSIGNMENT. Consultant shall not assign or transfer any rights, duties
or obligations hereunder.
7. LIABILITY.
a. Consultant agrees to indemnify, defend and hold
Sherwin-Williams, its agents and employees, harmless from and
against any and all claims or causes of action arising from or
relating to Consultant's performance or failure to perform
this Agreement including, without limitation, any loss,
injury, damage or liability resulting from the use of a motor
vehicle by Consultant.
b. Consultant hereby waives any claims against Sherwin-Williams,
it affiliates, agents, officers and employees for injury,
damage or death occurring in the performance of the Services.
Consultant further agrees to make no claim of any kind against
Sherwin-Williams, it affiliates, agents, officers and
employees arising out of this Agreement, except for claims for
money due as contemplated in this Agreement for Consultant's
Services.
8. ENTIRE AGREEMENT. This Agreement represents the entire understanding
and agreement between the parties hereto relating to the Services and
supersedes any and all prior agreements, whether written or oral, that
may exist between the parties regarding same. This Agreement may not be
amended or modified, except in a writing, signed by both parties.
9. WAIVER. Any waiver by either party of any provision or condition of
this Agreement shall not be construed or deemed to be a waiver of any
other provision or condition of this Agreement, nor a waiver of a
subsequent breach of the same provision or condition, unless such is
expressed in writing and signed by the party to be bound.
10. MISCELLANEOUS. The validity, interpretation and performance of this
Agreement shall be governed and construed in accordance with the laws
of the State of Ohio. All paragraph headings herein are for convenience
only and are in no way to be construed as part of this Agreement or as
a limitation of Agreement or as a limitation of the scope of the
particular section to which they refer. In the event of a conflict
between the terms or conditions of this Agreement and those of any
other document, the terms and conditions of this Agreement shall
control. Paragraph 5 and 7 above shall survive termination of this
Agreement.
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11. SEVERABILITY. If any paragraph, subparagraph, section, subsection,
sentence or clause of this Agreement shall be adjudged illegal, invalid
or unenforceable, such illegality, invalidity or unenforceability shall
not affect the legality, validity or enforceability of the Agreement as
a whole or of any paragraph, subparagraph, section, subsection,
sentence or clause hereof not so adjudged. The parties will endeavor to
replace the invalid or null and void provisions by those which
correspond best to the intentions of the parties hereto.
12. NOTICES. Any notice, communication or statement required or permitted
to be given hereunder shall be in writing and deemed to have been
sufficiently given when delivered in person, by registered or certified
mail, postage prepaid, return receipt requested, or by reputable
overnight carrier to Sherwin-Williams or Consultant at the address
indicated above. Either party may, by notice to the other, change the
addresses and names given.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
THE SHERWIN-WILLIAMS COMPANY CONSULTANT
("Sherwin-Williams")
By: /s/ Thomas E. Hopkins /s/ John G. Breen
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Title: Vice President - Human Resources JOHN G. BREEN
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