AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of July, 1999 by and between
DEL LABORATORIES, INC., a Delaware corporation (the "Corporation"), with
principal offices at 000 XXX Xxxxx, Xxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx, and XXX X.
XXXXXXX (the "Executive"), residing at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
W I T N E S S E T H:
WHEREAS, the Executive has been and is now in the employ of
the Corporation as its President and Chief Executive Officer and Chairman of the
Board of Directors of the Corporation pursuant to an employment agreement dated
November 13, 1992, and amendments thereto dated March 21, 1994, March 31, 1997
and April 20, 1999 (the "Agreement");
WHEREAS, the Board of Directors of the Corporation has
concluded that the Corporation will be benefited by securing the service of the
Executive; and
WHEREAS, the Corporation and the Executive desire to amend and
restate the Agreement to reflect certain changes to the Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements hereinafter set forth, it is agreed as follows:
1. EMPLOYMENT.
(a) The Corporation hereby employs the Executive
as its Chairman of the Board of Directors, President and Chief Executive Officer
and the Executive hereby accepts such employment with the Corporation for a term
commencing on the date of this Agreement and expiring on December 31, 2008.
During the term hereof, the Executive will devote his best efforts to such
employment and all of his business time and attention to the performance of his
duties hereunder; provided, however, that the Executive may devote reasonable
periods required for serving as a director or member of any organization
involving no conflict of interest with the interests of the Corporation, so long
as the same does not interfere with the performance of his duties hereunder.
(b) The Executive shall have all of the duties,
responsibilities and authority inherent in the positions of a president, chief
executive officer and chairman of the board of directors. All executives of the
Corporation, its divisions and subsidiaries shall report, directly or
indirectly, to the Executive and shall be subordinate to the Executive. Services
by the Executive shall be rendered in the Greater Metropolitan Area of New York
City, except that the Executive will continue to travel as required by the
business of the Corporation.
(c) The Executive will serve as director of the
Corporation and, at his option, of each of its subsidiaries, and the Executive
will be a member of the executive committee of each such board on which he
serves if an executive committee is created. The Executive will be a member of
all other committees of the Board of Directors of the Corporation, other than
the Stock Option Committee and the Audit Committee or any other committee on
which an officer of the Corporation is not eligible to serve.
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(d) Upon the termination of Executive's
employment, except for death, disability or Cause (as hereinafter defined), the
Executive shall have the right, but not the obligation, to serve for a period of
up to five years as a consultant to the Corporation in accordance with the terms
of this Section. During the period of consultancy, the Executive shall be paid,
not less frequently than monthly, an annual amount equal to 60% of his Minimum
Salary (as hereinafter defined) at the time of such termination; to the extent
eligible, he, his spouse, and members of his immediate family under the age of
21 shall continue to be part of the medical reimbursement program of the
Corporation or shall be furnished substantially equivalent coverage; and he
shall be provided with a suitable office with normal support services (including
secretarial services equivalent to those provided on the date of this Agreement)
in the Greater Metropolitan Area of New York City, which office may be at the
Corporation's headquarters, or such other location in the said Area as Executive
may select. During such time that Executive serves as a consultant pursuant to
the provisions hereof, he shall be entitled to the benefits provided under
Section 3 of this Agreement, and, at his election, Executive shall be entitled
to security services as may be appropriately required during the period of
consultancy. The Executive shall be available for consultation during regular
business hours, on adequate notice, in the Greater Metropolitan Area of New York
City, and the Executive shall not be required to travel. The Executive shall
also serve as a director of the Corporation, if requested by the Corporation.
The Executive shall not be required to devote more than 10 business days per
month to the consulting services, and availability by telephone shall constitute
availability for purposes hereof. The consulting services shall be scheduled so
as not to interfere with reasonable vacation and personal plans of the
Executive. During this period, the Executive's services shall be nonexclusive,
but the Executive shall continue to be subject to the provisions of Sections 16
and 17 of this Agreement as if he were continuing in the employ of the
Corporation.
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(e) It is understood that Executive may retire
at any time (hereinafter, "Voluntary Retirement").
2. COMPENSATION.
In consideration of his employment hereunder,
(a) The Corporation shall pay to the Executive,
not less frequently than monthly, an annual salary (the "Minimum Salary") as
fixed from time to time by the Board of Directors or its Compensation Committee
during the term of his employment hereunder and, as adjusted in accordance with
the provisions of Section 1(d) above, during any term he serves as a consultant.
The Minimum Salary shall be $723,000 as of January 1, 1999. The Minimum Salary
may be increased from time to time by the Board of Directors or its Compensation
Committee but shall not be decreased thereafter. References to the Minimum
Salary in this Agreement are to the Minimum Salary, as adjusted, in the year in
which the event requiring such reference occurs.
(b) As of the date hereof, the Executive is
indebted to the Corporation as follows:
(i) As of July 1, 1999, the Executive is
indebted to the Corporation in the principal amount
of $1,202,250 (the "Existing Balance"), which is the
remaining principal
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balance, as of that date, of loans made by the
Corporation to the Executive in 1984, 1988 and 1990.
Subject to the provisions of subparagraph (iii)
below, the Existing Balance is to be repaid as
follows:
Principal Due Date Amount Due
------------------ ----------
January 20, 2000 140,000.00
January 20, 2001 140,000.00
January 20, 2002 140,000.00
January 20, 2003 140,000.00
January 20, 2004 140,000.00
January 20, 2005 140,000.00
January 20, 2006 140,000.00
January 20, 2007 140,000.00
January 20, 2008 82,250.00
(ii) The interest rate applicable to the
Existing Balance shall be 6% per annum. All interest
accrued through any Principal Due Date shall be
payable on such date.
(iii) Notwithstanding anything to the
contrary set forth in (i) above, the Corporation
agrees to forgive any principal and interest payments
required to be made in respect of the Existing
Balance as provided in (i) above so
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long as the Executive is employed by the Corporation
under this Agreement at the time any such payment is
due or he is serving as a consultant to the
Corporation pursuant to Section 1(d) hereof, or if he
is neither employed by the Corporation under this
Agreement nor serving as a consultant, his employment
was not terminated for Cause. Furthermore, the
Corporation may, but is not required to, forgive in
any calendar year amounts in excess of the principal
and interest payments due during that year. In the
event the Corporation forgives in any year any
principal amount in excess of the principal required
to paid in that year as set forth in subparagraph (i)
above, such excess amount shall be applied to the
principal payments in the inverse order in which they
are due. In the event the Corporation forgives any
principal or interest in accordance with the
provisions of this subparagraph, the Corporation
shall also pay to the Executive such additional
payment or payments (a "Gross-Up Payment") in an
amount such that, after payment by the Executive of
all federal, state and local income and excise taxes,
if any, including any such taxes imposed on the
Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to such taxes imposed on the
principal and interest forgiven.
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(iv) If the Executive's employment is
terminated for Cause, the then outstanding principal
amount of the Existing Balance plus all accrued
interest thereon, to the extent not previously
forgiven, shall be repaid in accordance with the
schedule of payments set forth in (b)(i) hereof.
(v) As collateral security for the due and
punctual payment of the Existing Balance, interest
thereon and costs and expenses, if any, incurred by
the Corporation in the collection of amounts due from
the Executive, Executive has pledged a total of
87,077 shares of Common Stock of the Corporation (the
"Collateral Security"), which Collateral Security has
a fair value of not less than 110% of the Existing
Balance. So long as Executive is in compliance with
all terms and provisions of this Agreement and any
loan agreements or other documents applicable to any
of the loans comprising the Existing Balance, it will
release to Executive, at Executive's request, as much
of the Collateral Security in exchange for other
collateral or, upon reduction of the unpaid
principal, so much of the Collateral Security it then
holds as will continue to provide the Corporation
with Collateral Security having a fair value at the
time of release or exchange of not less than 110% of
the then Existing Balance. In the event the fair
value of the Collateral Security is at any time less
than 110% of the
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then Existing Balance, the Executive will, upon
demand made by the Corporation, deliver additional
collateral security, in form reasonably satisfactory
to the Corporation (which may be shares of Common
Stock of the Corporation), such that the Collateral
Security will have a fair value of not less than 110%
of the then Existing Balance.
(vi) In the event of any conflict between
the terms and provisions of this paragraph (b) of
Section 2 of this Agreement and the terms and
provisions of any loan document or other agreement or
document concerning the above-discussed indebtedness
of the Executive to the Corporation, the terms and
provisions of this paragraph (b) shall be
controlling.
3. BENEFITS AND EXPENSES.
(a) The Corporation will reimburse the Executive
for all reasonable and necessary business and entertainment expenses incurred by
him in connection with the performance of his duties hereunder. To the extent
such expenses include air travel by the Executive, such travel will be at
business class or better. In the event that any Federal, state or local
government agency or authority determines that any such expenses which are
reimbursed to
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the Executive constitute taxable income to the Executive, the Corporation
agrees, to the extent that such determination involves the Executive and
provided the Audit Committee of the Board of Directors approves, to reimburse
the Executive (i) for all costs in disputing such action, including counsel
fees, and (ii) for all taxes and penalties incurred by the Executive in
connection with such action.
(b) The Corporation shall furnish to the
Executive, for his sole use in connection with company business, a suitable
automobile comparable to the automobile heretofore furnished to the Executive.
The Corporation shall pay for all of the operating costs, including a chauffeur,
maintenance and storage costs of such automobile comparable to the automobile
heretofore furnished to the Executive. The Corporation shall keep both the
automobile and the chauffeur fully insured against any and all liabilities for
injuries to passengers or other persons and damages to property, including the
automobile.
(c) The Corporation shall reimburse Executive
for reasonable legal and accounting fees which he may incur in connection with
the preparation and periodic review of: his estate plan; tax planning; tax
returns; and this Employment Agreement and related employment arrangements.
4. BENEFIT PLANS.
The Executive shall be eligible to participate in any employee
benefit programs generally made available to senior executives of the
Corporation which are now or may hereafter be placed in effect.
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5 STOCK OPTIONS OR OTHER SIMILAR BENEFITS.
(a) With respect to shares of Common Stock of
the Corporation which may be acquired by the Executive pursuant to options or
rights heretofore or hereafter granted to him, the Corporation agrees that, to
the extent permitted by applicable law, at the Executive's request, the
Corporation will lend or cause to be lent to the Executive funds sufficient to
enable him to pay (i) the exercise price on such options or rights from time to
time up to the total number of shares covered by said options or rights and (ii)
any applicable federal, state and local income taxes incurred by the Executive
as a result of the exercise of such options and rights. Such loans may be
secured or unsecured, at the Corporation's discretion, but if secured, the
Corporation agrees that shares of its Common Stock, taken at market value at the
time, will be accepted by the Corporation as adequate security, subject to
applicable Federal, state or local governmental or agency laws, rules or
regulations. The term of each loan shall be for a term to be fixed by the Board
of Directors. Interest on any such loan, if charged by the Corporation, shall be
at an appropriate rate as determined by the Board of Directors, not exceeding
the prime rate of the Corporation's principal banking institution prevailing at
the time and from time to time thereafter. All of the other terms of such loan
or loan shall be as mutually agreed.
(b) The Corporation also agrees, at the
Executive's request, to use its best efforts to cause a registration statement
to become effective with respect to shares which the Executive may purchase
pursuant to said options or rights in order that the Executive may sell such
shares to the public, provided (i) the Executive shall not request such
registration statement with respect to shares subject to restrictions on sale or
transfer imposed by the terms of any stock
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options or rights until such restrictions shall have ceased to be effective,
(ii) at the Corporation's election, such registration statement may include, as
well, other securities of the Corporation and the securities of other persons
employed by the Corporation, (iii) such request shall not be made more
frequently than once in any 12 months period, and (iv) the Executive's request
for such registration statement shall not require the Corporation to use audited
financial statements other than those regularly prepared for it by its
independent public accountants and auditors unless the Executive agrees to bear
the cost of auditing such statements PRO RATA with other persons selling
securities. Except as set forth in (iv) above, the Corporation shall bear all
expenses in connection with such registration statement.
(c) In addition to the foregoing and any other
rights which Executive may have under each of the 1984 Stock Option Plan and the
1994 Stock Option Plan, and in addition to any other options granted to replace
shares of stock of the Corporation sold to pay the exercise price and
withholding taxes on options exercised, and any other plan in which Executive
may be entitled to participate, the Executive shall receive options to purchase
40,000 shares of stock of the Corporation during each calendar year, the first
such grant to be made on the date of the ratification of this Agreement by the
Board of Directors of the Corporation, July 29, 1999, and each subsequent grant
each calendar year to be made at such time and on such terms as may be
determined by the Board of Directors. The Executive's right under the foregoing
sentence to receive options shall apply only so long as the Executive is
employed by the Corporation under this Agreement. Furthermore, any such options,
as well as any options held by the Executive pursuant to the 1994 Stock Option
Plan shall be made transferrable pursuant to whatever actions are required to be
taken by the Compensation Committee.
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(d) This section shall apply to the executors,
heirs or legal representatives of the Executive to the extent such executors,
heirs or legal representatives succeed to the right of Executive to acquire
shares of Common Stock of the Corporation.
6. VACATIONS.
The Executive shall be entitled to such vacations, at such
times and for such periods, as are in accordance with the vacation policies of
the Corporation then in effect for senior executives employed by the
Corporation, but in no event shall Executive be entitled to fewer than five
weeks of vacation per year. The Executive shall not be required to take any
vacation time to which he is entitled in a given year. In the event the
Executive does not take all of the vacation time to which he is entitled in a
given year, such vacation time will be deferred and accumulated for use by the
Executive in a subsequent year up to a total of ten weeks of vacation time.
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7. INSURANCE.
(a) The Corporation has assisted in obtaining
and shall during the Executive's employment hereunder, keep in effect and pay
premiums upon insurance on the life of the Executive (the "Insurance") as
described herein. The Insurance, Massachusetts Mutual Policy Number 8853985 and
New York Life Insurance Policy Number 44864449, is owned by, and payable to
Xxxxxx X. Xxxxxx, Trustee (or his Successors) under a Trust Agreement dated
2/18/93 established by the Executive. The Corporation has paid since 1993 and
will continue to pay sufficient premiums in substantially equal installments
over a ten year period to fund the Insurance to the point that no further
premiums shall thereafter be necessary, provided that, if it is determined at
any time that such premiums are insufficient to provide the required death
benefit as set forth below, then additional premiums shall be paid by the
Corporation to maintain the required death benefit. The Insurance has been
purchased on a "split dollar" basis, so that upon the death of the Executive,
the Corporation, pursuant to Split Dollar and Collateral Assignment Agreements,
will be entitled to receive out of the proceeds of insurance the amount which it
has spent on premiums. The Insurance will have a death benefit of no less than
$4,000,000, provided that the Corporation will pay such additional premiums as
may be necessary to provide a net death benefit payable to the aforesaid Trust
of no less than $2,000,000 after subtraction of the amount which must be repaid
to the Corporation. The Corporation will be required to make premium payments
irrespective of whether the Executive is employed by the Corporation, except if
Executive's employment has been terminated for Cause.
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(b) Amounts payable upon the Executive's death
pursuant to this Section 7 are in addition to benefits payable pursuant to a
Group Life Insurance program which is or may be established and maintained by
the Corporation for which the Executive is eligible.
(c) The Executive agrees to submit to any
physical examination required by any prospective insurer, and will otherwise
cooperate with the Corporation in connection with any life insurance on the
Executive's life the Corporation may wish to obtain.
8. TERMINATION OF EMPLOYMENT.
(a) The Executive's employment shall terminate
hereunder upon any of the following events:
(i) Voluntarily termination by the
Executive, including Voluntary Retirement;
(ii) Termination for Cause
(as hereinafter defined);
(iii) Termination by reason of the
Executive's mental or physical disability (as
hereinafter defined);
(iv) Termination by reason of the
Executive's death; or
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(v) Termination upon expiration of the
term of employment set forth in Section 1(a) of this
Agreement or any renewal term.
(b) "Cause" for purposes hereof shall be deemed
to exist if:
(i) The Executive is convicted of, or
pleads NOLO CONTENDERE to, any crime or offense
involving theft or diversion of monies or other
property of the Corporation which conviction or
plea, through lapse of time or otherwise, is not
subject to appeal and which constitutes a felony in
the jurisdiction involved; or
(ii) Material breach by the Executive of
any provision of this Agreement, provided that such
breach continues for thirty business days after
delivery of notice to him of the facts on which the
Corporation bases a claim for a material breach.
Such notice shall be given only if approved by a
majority of the members of the Board of Directors,
not including the Executive for determining a
majority.
(iii) If the Executive is indicted for a
crime or offense, the conviction or NOLO CONTENDERE
plea of which
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would be grounds for termination for Cause, his
employment may be suspended until the charges are
dropped or he is acquitted. Such suspension and its
term shall be determined by a majority of the
members of the Board of Directors, not including the
Executive for determining a majority. During such
period of suspension all of the provisions of this
Agreement, including those relating to the
compensation of the Executive, shall continue in
full force and effect, except that the Executive
shall not act as Chairman of the Board of Directors,
President or Chief Executive Officer, and he shall
be available on reasonable notice at reasonable
times for consultation on the business and affairs
of the Corporation.
(c) The Executive may elect, by notice to the
Corporation in accordance with the provisions of paragraph (f) of this
Section 8, to treat the following acts or omissions by the Corporation to which
he has not given his express consent as termination of Executive's employment
without Cause:
(i) Subject to the provisions of the
foregoing Section 8(b)(iii), if he is not elected
and continued as a director of the Corporation and
appointed Chairman of the Board of Directors,
President and Chief Executive Officer.
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(ii) With respect to acts or omissions
other than those specifically stated in this
paragraph (c), if the Corporation shall not
substantially comply with its obligations under this
Agreement and such failure shall not be corrected
within ten business days after delivery of notice to
the Corporation of the facts on which the Executive
bases a claim of non-compliance.
(iii) The assignment to the Executive of
any duties inconsistent with his position as
Chairman of the Board of Directors, President and
Chief Executive Officer.
(iv) A relocation of the Executive's
office to a place other than the Greater
Metropolitan Area of New York City.
(v) A charge of material breach by the
Corporation under Section 8(b)(ii) hereof which is
determined by final judgment to have been made
without adequate basis in law or fact.
(vi) The sale by the Corporation of all
or substantially all of its assets and business or a
merger or consolidation of the Corporation with a
company other than
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a subsidiary of the Corporation in which the
shareholders of the Corporation, prior to the merger
or consolidation, own less than a majority of the
company surviving such merger or consolidation.
(vii) A change in control (as hereinafter
defined) of the Corporation.
(d) "Mental or physical disability" shall be
deemed to exist if, in the judgment of a physician licensed to practice in the
State of New York, mutually selected by the Board of Directors and the Executive
(or his representative), the Executive has been unable or will be unable, due to
mental or physical incapacity, disease or injury, to perform the duties or
services specified herein for a period of not fewer than 180 consecutive
calendar days. For purposes of this Agreement, the date of such disability shall
be the date of the determination by such physician.
(e) For purposes hereof, a "change in control"
shall be deemed to have occurred if, at any time prior to the expiration or
termination of this Agreement, voting power representing more than 40% of the
Corporation's outstanding Common Stock (or equivalent in voting power of any
class or classes of outstanding securities of the Corporation ordinarily
entitled to vote in elections of directors) shall be acquired, directly or
indirectly, by any individual, corporation or group, other than persons who are
members of the Board of Directors at the date hereof or who succeed to the
ownership of securities of the Corporation of any such members of the Board as
executor, administrator, heir or intestate distributee of such persons.
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"Group" shall mean persons who act in concert as described in Section 14(d) (2)
of the Securities Exchange Act of 1934, as amended. "Change in control" shall
not include increases in the percentage of voting power of persons who
beneficially own or control stock on the date of this Agreement which occur
solely as a result of a reduction in the amount of stock outstanding.
(f) The notice required by paragraph (c) of
this Section 8 shall be given within 60 days of the occurrence of a described
event which is not required to be reported on a Schedule 13D or Schedule 14D or
equivalent, or within 90 days after the filing of a report on Schedule 13D or
Schedule 14D or equivalent, reporting the event on which the Executive elects to
claim a termination without Cause.
9. COMPENSATION AFTER TERMINATION OF EMPLOYMENT.
(a) In the event the term of Executive's
employment expires pursuant to Section 1(a) hereof or in the event the
Executive's employment is terminated hereunder prior thereto for any reason, the
Corporation shall have no further obligations or duties to the Executive, except
as provided in Sections 1(d), 2(b), 3, 5, and 7 hereof and except that the
Executive shall be entitled to receive:
(i) All salary due and owing to the
Executive up to the termination or expiration date,
as the case may be (hereinafter collectively referred
to as the "Termination Date"), and any bonus or
incentive compensation for any year prior to the
Termination Date which has not been paid,
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and any bonus or incentive compensation for the year
of termination, prorated to the Termination Date,
provided that, if such bonus or incentive
compensation is discretionary in amount, the
Executive shall receive a payment for any year at
least equal to the last previous bonus or incentive
compensation payment made to him, which amount
shall, in the case of a bonus or incentive
compensation for the year of termination, be
prorated to the Termination Date. Any bonus payable
to the Executive over a number of years shall be
accelerated and paid in full on the Termination
Date,
(ii) Expense reimbursements due and owing
to the Executive as of the Termination Date, plus
payment for accrued vacation as of the Termination
Date at the Minimum Salary,
(iii) Payment, in accordance with prior
Corporation practice, and subject to the provisions
of Section 7, of life insurance premiums through the
Termination Date and of all benefits accrued for the
account of the Executive under the Corporation's
Employee Stock Ownership Plan, Pension Plan, Annual
Incentive
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Bonus Plan and Supplemental Executive Retirement
Plan as of the Termination Date,
(iv) Unless termination of Executive's
employment is for Cause, the Corporation shall
continue to pay during Executive's lifetime premiums
for health insurance which is substantially the same
as the health insurance provided to Executive of the
Termination Date, and
(v) Any monies owing to the Executive
pursuant to subsection (b) below.
(b) (i) In the event that the Executive's employment
under this Agreement is terminated other than for
Cause, he shall be entitled to receive for a number
of months equal to one month for each year he was
employed by the Corporation and its predecessors,
compensation at the Adjusted Compensation Rate, as
hereinafter defined. Such amount shall be paid
semi-monthly in equal installments over the same
number of months as determined in the preceding
sentence. "Adjusted Compensation Rate" shall mean the
sum of the Minimum Salary on the Termination Date and
110% of the amount of the bonus paid during the year
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preceding the Termination Date, excluding the amount,
if any, of loans forgiven during the year. Any such
payment is hereinafter referred to in this Agreement
as the "Deferred Compensation". Payment shall begin
on the first regular salary payment date during the
month after the month in which the Executive elects
Voluntary Retirement.
(ii) In the event of the termination of
employment due to the Executive's death, the
Corporation shall pay to his designated beneficiary
(as hereinafter defined) the Deferred Compensation,
provided that such Deferred Compensation shall not be
paid over the period set forth in (i) above, but
shall be paid semi-monthly in twelve equal
installments, commencing on the Termination Date.
(iii) In addition to the Deferred
Compensation, in the event the Executive's employment
under this Agreement is terminated other than for
Cause, in consideration of Executive's services and
obligations hereunder, including, where applicable,
his covenant not to compete with the Corporation set
forth in Section 17, the Corporation shall pay to the
Executive or his designated beneficiary, on the
Termination Date, a lump sum equal to
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his annual Minimum Salary on the Termination Date
multiplied by the greater of (i) the number of years
remaining in the balance of the term of Executive's
employment under this Agreement or any renewal or
extension hereof, or (ii) four years. Executive or
his designated beneficiary shall also be entitled to
receive the Deferred Compensation commencing on the
Termination Date. For purposes of this subsection
(iii), years remaining in the balance of the term of
Executive's employment shall be calculated on a
calendar year basis, and part of a calendar year
shall be deemed to be a full year.
(iv) Notwithstanding anything in this
Agreement or in any stock option agreement between
the Company and the Executive to the contrary, if the
Executive's employment under this Agreement is
terminated other than for Cause, then, at the
Executive's election (or the election of his
designated beneficiaries), Corporation will pay to
the Executive (or his designated beneficiaries) as
additional compensation the excess of the market
value at the close of business on the Termination
Date of up to all shares of stock which the Executive
had an option to acquire from the Corporation on such
date over the option price for such shares; and such
options shall terminate.
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(v) In the event the term of Executive's
employment under this Agreement expires without the
execution of a new agreement of employment (or
extension of this Agreement), or his employment
continues after December 31, 2008, without the
execution of a new agreement of employment (or the
extension of this Agreement) and thereafter
terminates at any time and for any reason, such
termination shall be deemed, for purposes of this
Section 9(b) to be a termination of Executive's
employment under this Agreement without Cause
entitling him or his designated beneficiary to
payments hereunder.
(vi) For purposes of calculating the
Deferred Compensation under this Section 9(b), the
number of years the Executive will be deemed to have
been employed by the Corporation and its predecessors
shall be calculated on a calendar year basis
commencing with the year 1965. For purposes of
computing the Deferred Compensation, if Executive is
employed for part of a calendar year, he shall be
credited with a full year's employment with the
Corporation for each such year. For purposes of any
calculation set forth above, the Executive shall not
be deemed to be in the employ of the Corporation for
any
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period during which he is paid pursuant to this
Section 9(b).
(vii) In the event the Executive dies
during the period he is receiving any monies
pursuant to this Section 9(b), or in the event any
monies are payable pursuant to this Section 9(b)
commencing upon the Executive's death, the monies
due shall be paid by the Corporation to such person
or persons as may be designated in writing from time
to time by the Executive, or in the absence of any
such designation to the personal representatives of
his estate. (For purposes of this Section 9(b), any
such payee shall be referred to as the "designated
beneficiary").
10. APPLICABLE LAW.
This Agreement is to be governed by and interpreted
in accordance with the laws of the State of New York applicable to agreements
made and to be performed wholly within such State, except with respect to the
powers of the Corporation, which are governed by Delaware law.
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11. AMENDMENT OF PLANS.
Notwithstanding anything to the contrary herein, nothing
herein is intended to or shall operate to restrict the right of the Corporation
to amend, terminate or modify, in accordance with the terms hereof, any employee
benefit programs or practices heretofore or hereafter adopted by the
Corporation.
12. ASSIGNMENT.
This Agreement shall be binding upon the parties hereto, their
heirs, successors and assigns, except as otherwise set forth herein. This
Agreement is personal in nature and may not be assigned by either party except
that, subject to the provisions of Section 8(c) herein, the Corporation will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Corporation to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform as if no such succession had taken place. Notwithstanding
the foregoing sentence, the Corporation shall not by virtue of any such
succession be relieved of any obligations hereunder.
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13. INDEMNIFICATION.
To the fullest extent not inconsistent with applicable law, in
the event that the Executive is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, the Corporation shall indemnify the Executive and hold him harmless,
against all expenses (including costs and attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Executive did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interest of the
Corporation, or that, with respect to any criminal action or proceeding, the
Executive had reasonable cause to believe that his conduct was unlawful. The
provisions of this Section 13 shall not be deemed exclusive of any other rights
of indemnification to which the Executive maybe entitled or which may be granted
to him, and it shall be in addition to any rights of indemnification to which he
may be entitled under any policy of insurance. These provisions shall continue
in effect after the Executive has ceased to be a director, officer, employee or
agent of the Corporation and shall inure to the benefit of Executive's heirs,
executors, administrators and intestate distributees.
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All litigation or inquiries by third parties (for example, but
not limited to, those by shareholders - direct or derivative - or government
agencies) arising out of or in connection with this Agreement or Executive's
performance hereunder, against either the Corporation or the Executive or both,
shall be defended or opposed by the parties hereto, as the case may be, to
support this Agreement, and the costs, fees and expenses thereof, including fees
of counsel for the parties, shall be borne by the Corporation.
Notwithstanding the foregoing provisions of this Section 13,
during the term of Executive's employment hereunder and during such time he
continues as an officer or member of the Board of Directors, the Corporation
agrees to maintain substantially the same Directors' and Officers' liability
insurance in place on the date hereof.
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14. ARBITRATION.
Any controversy or claim between the Corporation and
Executive, their representatives, heirs, successors and assigns, arising out of
or relating to this Agreement or any breach or asserted breach hereof or
questioning the validity and binding effect hereof shall be determined by
arbitration conducted in New York City in accordance with the Rules of the
American Arbitration Association then obtaining, and judgment upon any award
rendered may be entered in any court having jurisdiction thereof. The decision
of the arbitrators shall be final and binding upon the parties hereto. All of
the Executive's costs and expenses (including attorneys, fees) arising out of or
in connection with any matters submitted to arbitration pursuant to this Section
14 shall be paid by the Corporation, unless the award of the arbitrators shall
explicitly find that the Executive's claim or his defense against a claim by the
Corporation was frivolous and completely without merit, in which case the
Executive shall pay the costs and expenses (including, without limitation,
reasonable attorneys, fees) incurred by the Corporation in such connection.
15. NOTICES.
Any notice or other communication required to or which may be
given to any party hereunder shall be in writing and shall be deemed given
effectively if delivered personally to such party (or any officer thereof in the
case of the Corporation except that any notice to be given by the Executive to
the Corporation shall be to an officer other than himself) or if mailed, by
registered or certified mail, postage prepaid, return receipt requested,
addressed to such other
29
party at the address first set forth above. Any party may change the address to
which notices are to be sent by giving written notice of any such change in the
manner provided herein.
16. CONFIDENTIAL INFORMATION.
(a) The Executive recognizes that as an
executive of the Corporation he has had and will have access to secret and
confidential information regarding the Corporation, its products, customers and
plans. The Executive acknowledges that such information is of great value to the
Corporation, and is the sole property of the Corporation and that such
information has been and will be acquired by him in confidence. In consideration
of the obligations undertaken by the Corporation as set forth herein, the
Executive will not, at any time, during or after his employment hereunder,
reveal, divulge or make known, except as authorized by the Corporation or
required on its behalf or required pursuant to legal or administrative
processes, any information of a confidential nature concerning the Corporation
acquired by the Executive during the course of his employment.
(b) The Executive agrees that any breach or
threatened breach by him of any provisions of this Section 16 shall entitle the
Corporation, in addition to any other legal and equitable remedies available to
it, to apply to any court of competent jurisdiction to enjoin such breach or
threatened breach without the posting of any bond or any security.
(c) This Section 16 shall survive the
termination of the Executive's employment hereunder.
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17. COVENANT NOT TO COMPETE.
(a) The Executive recognizes that the services
to be performed by him hereunder are special, unique and extraordinary. The
parties confirm that it is reasonably necessary for the protection of the
Corporation that the Executive agree, and accordingly, the Executive does hereby
agree that he will not, directly or indirectly, except for the benefit of the
Corporation, at any time during his employment hereunder and thereafter during
the Restricted Period, as hereinafter defined, provided the Corporation shall
duly perform its obligations to the Executive pursuant to this Agreement:
(i) Become an officer, director,
stockholder, partner, associate, employee, owner,
agent, creditor, independent contractor, co-venturer
or otherwise, or be interested in or associated with
any other corporation, firm or business engaged, in
any geographical area in which the Corporation is
engaged, in making or selling one or more products
competitive with a product or products made or sold
by Corporation now or during the term of this
Agreement, which products made or sold by the
Corporation accounted for at least 5% of
Corporation's annual sales for any year during such
period;
(ii) Solicit, cause or authorize,
directly or indirectly, to be solicited for or on
behalf of himself or third
31
parties, from parties who were customers of the
Corporation at any time within one year prior to the
cessation of his employment hereunder, any business
competitive to the business transacted by the
Corporation with such customer,
(iii) Accept or cause or authorize,
directly or indirectly, to be accepted for or on
behalf of himself or third parties, any such
business from any such customers of the Corporation
as defined in the preceding subsection;
(iv) Solicit, or cause or authorize,
directly or indirectly, to be solicited for
employment for or on behalf of himself or third
parties, any persons who were at any time within one
year prior to the cessation of his employment
hereunder, employees of the Corporation;
(v) Employ or cause or authorize,
directly or indirectly, to be employed for or on
behalf of himself or third parties, any such
employees of the Corporation; or (vi) Take any
public position contrary to a public position taken
by the Board of Directors of Corporation, provided
that the foregoing shall not apply to actions taken
by the Executive to enforce his rights under this
Agreement
32
or to testimony or the production of documents by
the Executive which may be required by legal
process.
(b) The Executive agrees that any breach or
threatened breach by him of any provisions of this Section 17 shall entitle the
Corporation, in addition to any other legal or equitable remedies available to
it, to apply to any court of competent jurisdiction to enjoin such breach or
threatened breach without the posting of any bond or any security. If any of the
restrictions contained herein shall be deemed to be unenforceable by reason of
the extent, duration or geographical scope thereof, or otherwise, then the court
making such determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and in its reduced form this
paragraph shall then be enforceable in the manner contemplated hereby.
(c) This Section 17 shall not be construed to
prevent the Executive from owning in the aggregate an amount not exceeding three
per cent (3%) of the issued and outstanding voting securities of any class of
any corporation whose voting capital stock is traded on a national securities
exchange or in the over-the-counter market. For this purpose "outstanding voting
securities" shall be deemed to include the voting securities issuable upon
conversion of a corporation's outstanding convertible securities, whether or not
immediately convertible, and the voting securities of a corporation issuable
upon exercise of outstanding warrants and options to acquire voting securities,
whether or not immediately exercisable, and "voting securities" of a corporation
shall be deemed to include securities convertible into or exercisable for voting
capital stock, valued at the number of shares such securities are
33
convertible into or exercisable for the purpose of determining percentage
ownership of outstanding voting securities.
(d) The term "Restricted Period" as used in this
Section 17 shall mean the longer of (i) one year, and (ii) any period during
which the Executive is entitled to compensation hereunder pursuant to the
provisions of Section 1(d) or 2(a) hereof, including compensation payable while
Executive serves as a consultant to the Corporation pursuant to Section 1(d)
hereof, or would be so entitled but for action on the Executive's part which
relieves the Corporation of its obligations.
(e) This Section 17 shall survive the termination
of the Executive's employment hereunder for the period provided in
paragraph (d).
(f) Notwithstanding anything in this Agreement
to the contrary, if the Executive violates any of the provisions of paragraph
(a) hereof during the Restricted Period and fails to cease such violation and to
remedy the consequences of such violation within ten days after notice from the
Corporation specifying such violation and if the Corporation obtains a final
judgment from a court of competent jurisdiction to the effect that the Executive
has violated a provision of paragraph (a) and has failed to cease such violation
and to remedy the consequences of such violation within ten days after notice
from the Corporation, all obligations of the Corporation to compensate the
Executive and forgive indebtedness of the Executive to the Corporation shall
cease, and the Corporation shall be entitled to recover from the Executive
compensation received by the Executive and any indebtedness forgiven while such
violation existed.
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18. MODIFICATION.
The foregoing is the entire agreement between the parties
relating to the subject matter hereof and supersedes all prior agreements. This
Agreement may not be altered, modified, changed or discharged and none of the
provisions hereof may be waived except in writing, signed by the party to be
charged therewith. A failure strictly to enforce any of the terms of this
Agreement shall not be deemed to be a waiver of the right to enforce any such
term at any subsequent time.
19. MISCELLANEOUS.
(a) The Executive acknowledges that the remedy
at law for any material breach or threatened material breach by him of the
performance of his obligations hereunder will be inadequate and that the
Corporation shall be entitled to injunctive relief therefor.
(b) The Corporation recognizes that a
termination without Cause will subject the Executive to losses and damages, the
amount of which might not readily be determined, and that there exist only a
limited number of employment opportunities comparable in stature, compensation
and opportunity to employment as the Chief Executive Officer of the Corporation.
Therefore, the Executive shall not be required to seek or accept employment in
mitigation of any obligations of the Corporation arising by reason of his
termination without cause.
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20. SECTION HEADINGS.
The headings or titles of the sections of this Agreement are
not a part of this Agreement and are not intended to aid in the construction of
any provision thereof.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
ATTEST: DEL LABORATORIES, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------------
, Chairman
Compensation Committee
WITNESS:
/s/ Xxxxx X. Xxxxx /s/ Xxx X. Xxxxxxx
--------------------------- -------------------------------------
Xxx X. Xxxxxxx
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