Exhibit 10.17
April 1, 2001
Xx. Xxxxxxx XxXxxxxx
c/o Del Laboratories, Inc.
000 XXX Xxxxx
Xxxxxxxxx, XX 1156
Dear Xxxx:
This letter agreement (this AGREEMENT") is to confirm the terms and
conditions of your continued employment with Del Laboratories, Inc. ("DEL" of
the "COMPANY").
1. TITLE; TERM. You will be employed as Executive Vice President,
Marketing, Cosmetics Division, North America, reporting to the Chief Executive
Officer of Del. This Agreement will be effective for a four-year term commencing
January 1, 2001, unless sooner terminated or extended pursuant to the provisions
of this Agreement (the "TERM"). Your employment shall be in the greater New York
Metropolitan area, subject to occasional travel on Company business. Del agrees
to provide six (6) months notice of its intent not to renew this Agreement. If
Del elects to not extend this Agreement, you will continue to work in, and
perform all of the duties and responsibilities of your assignment, following the
decision, through the term of the Agreement unless terminated earlier pursuant
to the terms of this agreement.
2. SALARY. You shall be compensated at an annual base rate of not less
than Three Hundred Twenty Thousand Dollars ($320,000), which may be increased by
Del Senior Management at such times and in such amounts as the Chief Executive
Officer in his sole discretion decides. Any and all compensation payments
required by this Agreement shall be payable in accordance with Del compensation
policies and practices in effect during the Term of this Agreement.
3. COMPANY CAR; CAR SERVICE.
(a) Del will furnish to you for your use, in connection with
company business, an automobile in a class comparable to executives of your
rank. Del shall pay for all of the reasonable operating and maintenance costs of
such automobile, including all insurance charges and garage expenses.
(b) Del will provide you, as needed, with daily car service,
in connection with company business, from New York City to your office on Long
Island.
(c) You shall be responsible for all tax liability arising
from income reportable by Del to federal, state and local tax authorities and
attributable to your non-business use of the automobile and/or car service
furnished by Del.
4. STOCK OPTIONS. It will be recommended to the Board of Directors that
you be eligible to participate in the Del stock option program. Any award will
be made pursuant to, and will be governed by the Company's stock option policies
and practices. It will be in the Board's sole discretion as to whether any grant
will be made and in what amount. You will be eligible to request loans from the
Company for the purpose of exercising stock options, such loans to be in the
sole discretion of the Company, and subject to the Company's loan covenants with
the Company's lenders.
5. DEL POLICIES. During your employment with Del, you shall faithfully
adhere to, execute and fulfill all policies established by Del. You shall devote
all of your business time and attention to the affairs of Del, provided,
however, that you may devote reasonable periods required for serving as a
director or member of any corporation or charitable organization involving no
conflict of interest with the interests of the Company, so long as the same does
not interfere with the performance of your duties hereunder.
6. EXPENSES; TRAVEL.
(a) Del will reimburse you for all properly documented
necessary and reasonable business and entertainment expenses in accordance with
Del expense reimbursement policy.
(b) You will be permitted to travel by air for Del business
via business class, if available, or via first class air travel, if business
class is not available.
7. BENEFITS; LIFE INSURANCE; LEGAL AND ACCOUNTING FEES; SEVERANCE.
(a) BENEFITS. You are eligible for the Executive Vacation
Program and shall participate, subject to eligibility, in such profit-sharing,
pension, group insurance, executive medical, hospitalization or other incentive
benefit plans or arrangements as Del may now or in the future maintain for its
executives of comparable rank to you. Nothing herein shall be construed to
require Del to establish or continue any such plans and Del reserves the right
to modify or terminate those plans at any time. The establishment and/or
continuance of any such plan is within the sole discretion of Del.
(b) LIFE INSURANCE. During the Term of this Agreement, the
Company shall provide insurance on your life payable to persons designated by
you in an amount of not less than $1,500,000, which may include split-dollar
and/or group life insurance, provided, however, that the annual cost of such
insurance to Del shall not exceed $70,000 per year.
(c) LEGAL AND ACCOUNTING FEES. During the Term of this
Agreement, the Company will reimburse you, upon presentation of applicable
documentation, up to $10,000 per year for reasonable legal and accounting fees
which you may incur in connection with the preparation and periodic review of
this Employment Agreement, your estate plan, tax planning and tax returns. The
benefit shall be cumulative, i.e., any amounts not used in a given year of
employment may be used in later years during the Term of this Agreement,
provided, however, that any unused amounts shall not be paid to you upon
termination of this Agreement.
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(d) SEVERANCE. If your employment is terminated by the Company
without cause, you will receive the greater of: (A) the balance of the Term (as
defined in Section 1 hereof) at your then current salary (as described in
Section 2 hereof); or (B) one month's pay at your then current salary for each
full year of employment up to a maximum of 36 months. Such severance is subject
to the provisions of Sections 11 and 17 and shall be paid to you in 18 equal
monthly installments commencing the first day of the month after the date of
termination of your employment. Neither death nor permanent disability (as
described in Section 16(a) below) shall be deemed termination without cause for
purposes of this Agreement.
8. BONUS. You will be eligible each year that you are employed to
receive a bonus. The amount of the bonus shall be determined in accordance with
the provisions of Del's Annual Incentive Plan. Any bonus you receive will be
payable on a pro rated annualized basis at the times that Del pays annual
bonuses to other executives of your rank.
9. CONFIDENTIALITY.
(a) You recognize that as an executive of Del you will have
access to, acquire or assist in the development of secret, proprietary and
confidential information regarding Del, its products, customers and plans
("CONFIDENTIAL INFORMATION"), the disclosure of which to the competitors of Del
or others would cause Del to suffer substantial and irreparable damage. You
acknowledge that such information is of great value to Del, is the sole property
of Del and that such information has been and will be acquired by you in
confidence. Confidential information shall not include information that can be
demonstrated to have been generally available or later becomes available to the
public, other than through breach of this agreement. In consideration of the
obligations undertaken by Del as set forth herein, you will not, at any time,
during or after your employment hereunder, publish, disclose or use, or
authorize any other person or entity to publish, disclose or use, any secret or
confidential information, whether patentable or not, of or about Del, including
Trade Secrets (as that term is defined below) and any other secret or
confidential information of which you become aware of or informed during the
Term of your employment, whether or not developed by you, except as required in
your duties to Del.
For purposes hereof, "TRADE SECRETS" shall include, without limitation,
compilations, studies, strategies, programs, methods, inventions, techniques and
processes of or about Del and its affiliates or their business, customers or
suppliers, which derive independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by, other
persons who can obtain economic value from their disclosure or use and which are
the subject of efforts to maintain their secrecy that are reasonable under the
circumstances. Some examples are information relating to (i) special needs and
characteristics of customers of Del and its affiliates, (ii) computer programs
and controls, (iii) existing and new or envisioned products, formulas,
ingredients, devices, methods, processes and techniques, (iv) laboratory tests
and data, studies and analyses, research and development data and projections,
(v) marketing, sales, pricing, costs and other financial data and projections,
(vi) marketing, promotional and advertising studies, programs and strategies and
(vii) names of current, former and prospective customers and suppliers of Del.
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(b) Upon termination of your employment with Del, you shall
promptly deliver to Del all files, records, documents, drawings, blueprints,
product samples, tests, test results, manuals, letters, notes, notebooks and
reports of Del, and all copies thereof, and all other materials of a secret,
proprietary or confidential nature relating to Del's business.
10. NON-COMPETITION DURING EMPLOYMENT. You recognize that the services
to be performed by you hereunder are special, unique and extraordinary. The
parties confirm that it is reasonably necessary for the protection of Del that
you agree, and accordingly, you do hereby agree that, unless you have obtained
the prior written consent of Del, you will not, directly or indirectly, at any
time during the Term of your employment or consultancy (as consultancy is
defined in paragraph 17):
(i) become a director, officer, stockholder, partner,
associate, employee, consultant, owner, agent or independent contractor, or
engage or participate in any other individual or representative capacity
whatsoever, in the conduct or management of, or own or have any stock or other
proprietary or financial interest in, or in any other way be interested in or
associated with any Restricted Entity (as defined in Section 11(e)), except that
you shall be free without such consent to own up to one percent of the capital
stock of corporations whose securities are publicly owned and regularly traded
on any national exchange or in the over-the-counter market; or
(ii) solicit, or cause or authorize any other person
or entity to solicit, for or on behalf of yourself or any third party, persons
or entities who are customers of Del for any business similar to the business
transacted by Del with such customer; or
(iii) sell to or accept, or cause or authorize any
other person or entity to sell to or accept, for or on behalf of you or any
third party, any business from any such customers of Del.
11. NON-COMPETITION AFTER EMPLOYMENT.
(a) You recognize that the Confidential Information and Trade
Secrets are special and unique and of great value to Del, that Del has made a
substantial investment in their development, that their disclosure to anyone not
authorized to become aware of them, especially to any Restricted Entity (as
defined below), could cause irreparable injury to Del's business, and that your
employment with or interest in a Restricted Entity could make effective
enforcement of this Agreement impracticable.
(b) Because of this, should you terminate your employment with
Del for any reason or should Del terminate your employment for any reason, you
agree to comply with the restrictions set forth in paragraph (e) of this Section
during any period that Del agrees to provide you with continued payment of your
salary or wages, including without limitation under paragraph 7(d) or paragraph
17, or to provide you separation or severance pay pursuant to any agreement,
severance policy or program of Del or otherwise ("SEVERANCE Period"). In the
event that you receive any lump sum payment in lieu of any such continuing
payment during the Severance Period, you agree to comply with the restrictions
set forth in paragraph (e) of this Section for the remainder of the Severance
Period during which continuing payments would have been made.
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(c) In addition, having in mind that the preceding paragraph
(b) may not adequately protect Del's interests against voluntary or coerced
disclosure or misuse, you agree that if during your employment with Del or at
any other time during the eighteen (18) months following your termination of
your employment with Del for any reason or Del's termination of your employment
for any reason you are offered employment with or any other interest referred to
in paragraph (e) of this Section with a Restricted Entity and you wish to accept
the same, you will give prompt written notice to Del's Vice President of Human
Resources at Del Laboratories, Inc., 000 XXX Xxxxx, 0xx Xxxxx, Xxxxxxxxx, XX
00000, stating that you have been offered such employment or other interest
representing that such offer is a bona fide and firm offer and that you intend
to accept the same unless precluded hereby, specifying the specific employment
title and duties or other interest so offered of such offer and consenting to
Del contacting appropriate officials at such other company solely for the
purpose of verifying the nature and terms of the employment or other interest
offered. Del will maintain as confidential the information you provide with
respect to such offer except as otherwise provided herein.
(d) If Del in its sole discretion determines that the
Confidential Information and/or Trade Secrets to which you had access require
such protection and elects, therefore, to restrict your employment or other
interest as provided in paragraph (e) of this Section, it shall be entitled to
do so by giving you written notice no later than fourteen (14) days after Del
receives written notice from you as above provided, specifying a period expiring
not more than eighteen (18) months following your last day of employment with
Del during which it elects to restrict your employment or other interest (the
"RESTRICTED PERIOD"), and irrevocably agreeing to pay you monthly for each month
(or portion thereof) commencing on the later of (A) the date of Del's notice or
(B) the date that Del's continued payment of your salary or wages or payment of
separation or severance pay referred to in paragraph (b) of this Section
terminates, and continuing through the end of the Restricted Period your regular
monthly base salary in effect on the last day of your employment with Del (pro
rated for any partial month). Any payment being made to you under paragraph
17(a) shall satisfy the requirement for payment set forth in this paragraph for
the month in which such payment is made. There are not to be double payments
under this paragraph and paragraph 17.
(e) If the option provided for in paragraph (d) of this
Section is so exercised or any payments are made as set forth in paragraph (b)
of this Section, you agree that during the period for which payments as above
provided are made, you will not directly or indirectly, as a director, officer,
stockholder, partner, associate, employee, consultant, owner, agent or
independent contractor become or be interested in, or associated with, any other
corporation, firm or business engaged in a consumer or professional cosmetics,
fragrances, toiletries or over-the-counter pharmaceuticals business that is
competitive, in any geographical area, with any business of Del to which you
were assigned or for which you rendered substantial employment services or with
respect to which you were exposed to Confidential Information or Trade Secrets
at any time during the two years prior to the termination of your employment (a
"RESTRICTED ENTITY"); provided that your ownership, directly or indirectly, of
not more than one percent of the issued and outstanding stock of a corporation
the shares of which are regularly traded on a national security exchange or on
the over-the-counter market shall not solely on its own be deemed to be a
violation of this sentence.
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(f) Notwithstanding any other provision of this Agreement if
during the period that payments referred to in paragraph (d) of this Section are
made to you and you receive compensation for employment or consulting services
rendered to any corporation, firm or business which (i) is not a Restricted
Entity or (ii) is a Restricted Entity as to which Del after due notice from you
as required by paragraph (c) of this Section, does not duly exercise its option
under paragraph (d) of this Section, the amounts of such payments referred to in
paragraph (d) of this Section shall be reduced by the amount of such other
compensation payable as a result of such other employment or consulting
services.
12. ENFORCEMENT OF OBLIGATIONS; FORFEITURE UNDER DEL LABS 1994
STOCK PLAN.
You agree that your failure to perform any obligation under this
Agreement will cause immediate and irreparable damage to Del, that there is no
adequate remedy at law for such failure and that in the event of such failure
Del shall be entitled to injunctive relief without posting of any bond, and such
other relief as may be just and proper. Without limiting the generality of the
foregoing, in the event that you receive a grant of an award under the Del Labs
1994 Stock Plan (the "1994 STOCK PLAN"), you irrevocably agree, consent and
acknowledge that if you violate or fail fully to comply with and perform each
and every covenant and undertaking set forth in this Agreement, then, in
addition to each and every other remedy of Del, to the extent that on the date
of such violation or non-performance there shall remain outstanding and
unexercised (whether or not then vested) any portion of any stock option or
stock appreciation right or there shall remain outstanding and unvested any
portion of any other award granted to you under the 1994 Stock Plan, such award
or portion thereof shall immediately and automatically terminate and become
unexercisable without any action or notice by Del, in accordance with the
provisions of Section 11 of the 1994 Stock Plan. In addition, you shall remain
subject to all of the provisions of the 1994 Stock Plan.
13. NON-SOLICITATION OF DEL EMPLOYEES OR CUSTOMERS. For a period of
eighteen (18) months after the termination of your employment and/or consultancy
with Del, you will not knowingly:
(a) solicit, or cause or authorize any other person or entity
to solicit, advise, recommend, or in any way participate in the hiring process
of, any employee, consultant or contractor of Del, or any other person, who you
know was at any time within one year prior to the cessation of your employment
hereunder then under contract with or rendering services to Del, to terminate
his or her employment by, or consulting or contractual relationship with, Del,
or to refrain from extending or renewing the same (upon the same or new terms),
to refrain from rendering services to Del, or to become employed or retained by
or to enter into contractual relations with persons or entities other than Del.
A violation of this provision will constitute a material breach of this
Agreement, and you agree that as damages for any such breach, without the need
for Del to establish any damages, you will pay to Del the amount of $50,000 in
addition to whatever other relief may be available under paragraph 15 below
and/or awarded by a court of law; or
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(b) solicit, or cause or authorize any other person or entity
to solicit, for or on behalf of yourself or any third party, persons or entities
who were customers of Del at any time within one year prior to the cessation of
your employment hereunder for any business similar to the business transacted by
Del with such customer; or
(c) sell to or accept, or cause or authorize any other person
or entity to sell to or accept, for or on behalf of you or any third party, any
business from any such customers of Del.
14. INTELLECTUAL PROPERTY. All inventions, ideas, processes, designs,
or discoveries relating to the business of Del, whether or not patentable or
entitled to trademark, copyright or other protection, which you conceive,
produce or make, alone or jointly with others, during your employment with Del
or at any time thereafter if you use Del's trade secrets or other confidential
information which in any way relates to the present or anticipated business,
development, tests, products or activities of Del, or which in any way results
from or are suggested by or connected with your employment with Del, are and
shall be the property of the Del. You also agree to, and hereby do, assign and
transfer to Del all of your rights, title and interest in and to such
inventions, and in any and all Letter Patents and/or patent application with
respect thereto, and you further agree that whenever requested by Del, either
during or subsequent to your employment, you shall execute patent and/or
copyright applications, and other instruments considered necessary or desirable
by Del, to apply for and obtain Letters Patent and/or copyrights of the United
States and foreign countries covering such inventions, processes, designs,
discoveries, and/or ideas, and you shall make assignments and execute any other
instruments necessary to convey to Del ownership and exclusive rights to such
inventions, discoveries, patent applications, patents and copyrights. Del shall
bear all expenses connected with such patent, patent applications and
maintenance of patent protection, and copyrights, and if services in connection
therewith are performed by you at the request of Del after the termination of
your employment, Del shall pay reasonable compensation for such services.
15. REMEDIES. (a) You agree that any breach or threatened breach by you
of any provisions of paragraphs 9 through 14 would result in irreparable harm to
Del and could not reasonably or adequately be compensated in damages and that,
in the event of any such breach or threatened breach, Del shall be entitled to
(i) equitable relief, including but not limited to temporary, preliminary and
permanent injunctive relief enforcing the specific performance by you of this
Agreement or enjoining or restraining you from any violation or threatened
violation of the terms of this Agreement, and an equitable accounting of all
earnings, profits and other benefits arising from such breach, and (ii) recover
from you an amount equal to all profits, commissions or other compensation or
remuneration received or earned, directly or indirectly, by you from or on
account of any violation of your obligations under paragraphs 9 through 14 of
this Agreement. You further agree that if it is determined that you have
breached the restrictions contained in paragraphs 9 through 14 of this
Agreement, Del shall be entitled to recover from you all costs and reasonable
attorneys' fees incurred as a result of its attempts to redress such breach or
enforce its rights and protect its legitimate interest. If any of the
restrictions contained in paragraph 10 through 15 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 thereof,
and in its reduced form such paragraph shall then be enforceable in the manner
contemplated hereby.
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(b) Paragraphs 7(d), 9 through 15 and 17 shall survive the
termination of your employment, or the expiration or termination of this
Agreement.
(c) For purposes of paragraphs 9 through 14, "Del" shall mean
Del and its affiliates.
(d) You agree that a copy of this Agreement may be provided by
Del to any of your future employers or potential future employers for purposes
of enforcing the provisions of paragraphs 9 through 14.
16. (a) DEATH; DISABILITY. This Agreement shall terminate upon your
death and may be terminated by Del upon your permanent disability. Permanent
disability shall be deemed to exist if, in the judgment of a physician licensed
to practice in the State of New York selected by Del and you or your legal
representative, you have been unable or will be unable, due to mental or
physical incapacity, disease or injury to perform your duties or services to Del
for a period of not less than three consecutive months. If this Agreement
terminates due to your death, Del shall pay your estate or your legal
representative, as the case may be, an amount equal to your base salary for
three months plus any amounts due for past services. If the Agreement terminates
due to your permanent disability, Del shall pay you or your legal
representative, as the case may be, an amount equal to your base salary for
twelve (12) months, plus any amounts due for past services. Such amounts shall
be paid in monthly installments.
(b) TERMINATION FOR CAUSE. Del may terminate this Agreement
for cause in the event you:
(i) commit any act of fraud or dishonesty in
connection with your employment or otherwise involving Del;
(ii) fail, refuse or neglect to perform any material
duty or obligation to Del or fail, refuse or neglect to carry out any
instructions or directions of Del after receipt of written notice of your need
to remedy any such failure, refusal or neglect;
(iii) engage in conduct which, in Del's good faith
opinion, is detrimental to Del's interests;
(iv) commit a material breach of any provision of
this Agreement or any fiduciary or other duty to Del; or
(v) violate paragraphs 9,10,11 12 , 13 or 14 above,
or misrepresent or fail to disclose any material fact, information or statement
to Del.
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(c) In the event Del terminates this Agreement for cause, or
with notice of termination as provided in Paragraph 1 above, Del's obligations
shall cease and terminate as of the date of such termination, except as provided
in Section 17 below.
17. OPTION TO RETAIN AS CONSULTANT. If your employment with Del
terminates for any reason whatsoever:
(a) Del shall have the option to retain your services as a
consultant for a period of up to eighteen (18) months, commencing on such date
of termination, at your then current base salary, except if such payments are
already being provided to you pursuant to Section 7(d) hereof, in which case you
shall serve as a consultant to Del without any additional compensation. During
the period of any such consultancy you shall continue to receive the benefits
set forth in paragraphs 3 and 7, PROVIDED that if you are not eligible to
participate in any of Del's benefit plans as a consultant, Del shall provide you
with an equivalent level of coverage or benefits under an alternative plan or
plans at Del's expense. In its sole discretion, Del may determine not to retain
your services as a consultant.
(b) Your duties as a consultant shall be determined by Del.
During any period when you are receiving compensation hereunder, including
periods when Del has tendered such compensation despite your failure or refusal
to act, you shall continue to be bound by the provisions of paragraphs 9 through
14 of this Agreement. During the period of such consultancy, you shall not
accept any employment or consultancy with any Restricted Entity.
18. NOTICE OF VOLUNTARY TERMINATION. You agree that you will give Del
at least one hundred twenty (120) days' notice prior to any voluntary
termination of your employment hereunder. Subject to the provisions of Section
7(d), any other remaining obligations Del may have to you under this Agreement
will cease as of the date your employment ends through such a voluntary
termination. In its sole discretion, Del may waive the 120 days' notice and
request and secure your immediate termination, at any time during the notice
period, by paying you thirty (30) days' compensation at the annual base rate,
initially set forth in paragraph 2 of this Agreement, in effect at the time of
your voluntary termination.
19. NO RESTRICTIONS; INDEMNITY. You have represented and hereby
represent and warrant to Del that there are no restrictions, covenants,
agreements or limitations on your right or ability to enter into and perform the
terms of this Agreement, and agree to indemnify and save the Company harmless
from any liability, cost or expense, including attorneys' fees, based upon or
arising out of any such restrictions, covenants, agreements or limitations that
may be found to exist.
20. COOPERATION. You agree that during the period you are employed by
Del, including as a consultant, and at any time thereafter, you will assist and
cooperate with Del in connection with any ongoing or future investigation,
dispute or claim of any kind involving Del, including any proceeding before any
arbitral, administrative, regulatory, judicial, legislative or other body or
agency, to the extent that such claims, investigations or proceedings relate to
services performed or required to be performed by you, pertinent knowledge
possessed by you or any act or omission by you.
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21. COMPLIANCE WITH LAWS. In connection with your employment with Del,
you shall comply in all material respects with all federal, state and local
laws, rules and regulations applicable to Del's business.
22. ASSIGNMENT. This Agreement is personal to you and non-assignable by
you. It shall extend to, and be binding upon any corporation or other entity
with which Del shall merge or consolidate or to which Del shall lease or sell
all or substantially all of its assets and may be assigned by Del to any
affiliate of Del or to any corporation or entity with which such affiliate shall
merge or consolidate or to which such affiliate shall lease or sell all or
substantially all of its assets.
23. NOTICES. Any notices or other communications required by or
permitted to be given hereunder shall be in writing, and shall be duly given if
delivered personally or sent by registered or certified mail, return receipt
requested, to Del at 000 XXX Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention: Xxx X.
Xxxxxxx, and to you at your address set forth on page one of this Agreement, or
to such other address as either party shall designate by written notice to the
other.
24. ARBITRATION. Except as set forth in Paragraphs 9 through 14 above,
any claim or controversy arising out of or relating to this Agreement, or any
breach thereof, or otherwise relating to your employment, compensation and
benefits with the Company, or the termination thereof, shall be settled by
arbitration in New York, New York in accordance with the employment dispute
resolution rules established by the American Arbitration Association; provided,
however, that you and Del agree that (i) the arbitrator shall be prohibited from
disregarding, adding to or modifying the terms of this Agreement; (ii) the
arbitrator shall be required to follow established principles of substantive law
and the law governing evidence and burdens of proof; (iii) only legally
protected rights may be enforced in arbitration; (iv) the arbitrator shall be
without authority to award punitive or exemplary damages; (v) the arbitrator
shall be a retired judge or an attorney licensed to practice law in New York who
has experience in similar matters; and (vi) any demand for arbitration must be
filed and served, if at all, within 180 days of the occurrence of the act or
omission complained of. Any claim or controversy not submitted to arbitration in
accordance with this paragraph shall be considered waived and, thereafter, no
arbitration panel or tribunal or court shall have the power to rule or make any
award on any such claim or controversy. The award rendered in any arbitration
proceeding held under this paragraph shall be final and binding, and judgment
upon the award may be entered in any court having jurisdiction thereof. The cost
of arbitration will be shared equally between you and Del. Del will not be
responsible for the cost of your representative or counsel.
25. AMENDMENT. This Agreement may not be changed, altered or amended
orally and no modification, amendment or waiver of any provision contained in
this Agreement, or any future representation, promise or condition in connection
with the subject matter of this Agreement shall be binding upon any party hereto
unless made in writing and signed by you and the Chief Executive Officer of Del.
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26. ENTIRE AGREEMENT.
(a) IN GENERAL. Except as provided in Section 26(b), this
Agreement contains the entire agreement between us in any way relating to your
employment, compensation and benefits with Del and supersedes any and all
previous agreements of any kind whatsoever between us, whether written or oral.
All prior and contemporaneous discussions and negotiations have been and are
merged and integrated into, and are superseded by, this Agreement.
(b) CHANGE IN CONTROL. To the extent that you are a party to a
Change in Control Agreement with the Company, the terms and conditions of such
contract shall supercede all contrary provisions in this Agreement. In no event
shall you be entitled to severance under this Agreement to the extent that the
Change in Control Agreement is applicable.
27. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement is made and
entered into, and shall be subject to, governed by, and interpreted in
accordance with the laws of the State of New York without regard to principles
of conflict of laws. The parties (i) agree that subject to the provisions in
paragraph 24 any suit, action or other legal proceeding arising out of this
Agreement may be brought in the United States District Court for the Eastern
District of New York, or if such court does not have jurisdiction or will not
accept jurisdiction, in any court of general jurisdiction in Nassau County, New
York, (ii) consent to the jurisdiction of any such court, and (iii) waive any
objection which they may have to the laying of venue in any such court. The
parties also consent to the service of process, pleadings, notices or other
papers by regular mail, addressed to the party to be served, postage prepaid,
and registered or certified with return receipt requested.
28. HEADINGS. The headings in this Agreement are for convenience only
and shall not be used to interpret the provisions of this Agreement.
Very truly yours,
DEL LABORATORIES, INC. AGREED:
By /s/ Xxx X. Xxxxxxx /s/ Xxxxxxx XxXxxxxx
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Xxx X. Xxxxxxx Xxxxxxx XxXxxxxx
Chairman of the Board, President
and Chief Executive Officer
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