CHANGE IN CONTROL
AGREEMENT
THIS AGREEMENT, dated as of September 20, 2007 between Del
Laboratories, Inc., a Delaware corporation (the "COMPANY"), and Xxxxx Xxxxx
("EXECUTIVE").
BACKGROUND:
In consideration of the future service to be provided by Executive to
the Company and the mutual covenants hereinafter set forth, the Company and
Executive (individually a "PARTY" and together the "PARTIES") intending to be
legally bound agree as follows:
1. DEFINITIONS.
(a) "BASE COMPENSATION" shall mean Executive's annual base compensation
payable by the Company.
(b) "BOARD" shall mean the Board of Directors of the Company.
(c) "CAUSE" shall be defined as (i) willful refusal or willful neglect
by Executive to perform substantially her employment-related duties; (ii)
willful gross misconduct or willful breach of fiduciary duty, each in connection
with Executive's employment with the Company; (iii) conviction of a crime
constituting a felony (or crime or offense of equivalent magnitude in any
jurisdiction) or personal dishonesty or a willful violation of any law, in each
case which causes material financial harm to the Company or (iv) material breach
of any written covenant or agreement with the Company or any of its subsidiaries
or affiliates not to disclose any confidential information pertaining to the
Company or any such subsidiary or affiliate.
(d) "CHANGE IN CONTROL" shall mean the occurrence of any one of the
following events:
(i) individuals who, as of the beginning of any twenty-four
month period, constitute the Board (the "INCUMBENT BOARD") cease for any reason
to constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to the beginning of such period whose election or
nomination for election was approved by a vote of at least 75% of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of
members of the Board;
(ii) at any time prior to the expiration or termination of
this Agreement, voting power representing more than 50% of the Company's
outstanding common stock shall be acquired, directly or indirectly, by any
individual, corporation or group, other than persons who are members of the
Board at the date hereof or who succeed to the ownership of securities of the
Company of any such members of the Board as executor, administrator, heir or
intestate distributee of such persons. "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;
(iii) the effective date of a merger, consolidation, or sale
of all or substantially all of the business and/or assets of the Company, unless
such transaction is with an affiliate of the Company or such transaction results
in the Company being the controlling, surviving entity;
(iv) the adoption of a plan of liquidation by the Company or
its shareholders; or
(v) the adoption of a resolution by a majority of the Board
then in office declaring that a Change in Control has occurred, in which case
the Change in Control shall be deemed to have occurred on the date of, or the
date stated in, the Board resolution so declaring.
(e) "EMPLOYMENT AGREEMENT" shall mean the letter agreement dated March
13, 2007 between Executive and the Company.
(f) "GOOD REASON" shall mean, without Executive's express written
consent and without Cause, the occurrence, after a Change in Control of the
Company, of any of the following:
(i) Any material and adverse diminution of Executive's
position, reporting relationships, responsibility or authority, or assignment of
duties materially inconsistent with Executive's responsibilities and status in
effect immediately prior to the Change in Control of the Company;
(ii) Executive's Base Compensation is decreased by the Company
or her incentive or equity opportunity under any material incentive or equity
program of the Company is or are reduced;
(iii) The failure by the Company to continue in effect any
material fringe benefit or compensation plan, retirement plan, life insurance
plan, health and accident plan or disability plan in which Executive is
participating at the time of a Change in Control (or plans providing Executive
with substantially similar benefits), the taking of any action by the Company
which would adversely affect Executive's participation in or materially reduce
her benefits under any of such plans or deprive her of any material fringe
benefit enjoyed by her at the time of the Change in Control, or the failure by
the Company to provide her with the number of paid vacation days to which she is
then entitled on the basis of years of service with the Company in accordance
with the Company's normal vacation policy in effect immediately prior to the
Change in Control;
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(iv) The failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement, as
contemplated in Section 7 hereof;
(v) The Company's requiring Executive to be based anywhere
other than within 30 miles of the Company's current headquarters; or
(vi) The Company's requiring that Executive undertake business
travel to an extent significantly greater than Executive's business travel
obligations immediately prior to the Change in Control.
(g) "TERMINATION UPON A CHANGE IN CONTROL" shall mean that prior to or
following a Change in Control and during the term of this Agreement, the Company
or Executive terminates Executive's employment as described in Paragraph 3(a).
2. TERM OF AGREEMENT. This Agreement shall commence on the date hereof and shall
continue in effect until the third anniversary of the date hereof; provided,
however, that the term of this Agreement shall automatically renew itself each
year for an additional term of one year until the Company provides Executive one
year written notice that it wishes to terminate this Agreement; such termination
shall be effective on the anniversary date hereof first occurring after such
notice is given. The Company may not give such notice while it has knowledge
that any third party has taken steps reasonably calculated to effect a Change in
Control of the Company, unless and until such third party has, in the reasonable
opinion of the Company, abandoned its efforts to effect a Change in Control of
the Company. In addition, if a Change in Control of the Company occurs during
the term of this Agreement, or if a Change in Control would have occurred during
the term of this Agreement but for a delay in regulatory approval or litigation
related to the Change in Control, this Agreement shall automatically continue in
effect for a period of twenty-four (24) months beyond the last day of the month
in which such Change in Control occurs.
3. TERMINATION UPON A CHANGE IN CONTROL.
(a) Prior to or following a Change in Control of the Company, Executive
shall be entitled to the benefits provided in Section 4 hereof upon the
subsequent termination of Executive's employment, if such termination occurs
within twenty-four (24) months following such Change in Control and is (i) by
the Company other than for Cause following a Change in Control, (ii) by the
Company (other than for Cause) prior to and in connection with an anticipated
Change in Control at the request or direction of an acquirer involved in the
Change in Control, or (iii) by Executive for Good Reason following a Change in
Control. Notwithstanding anything in this Agreement to the contrary, if
Executive's employment terminates on account of Executive's disability,
Executive shall be entitled to receive disability benefits under any disability
program maintained by the Company that covers Executive, and Executive shall not
be considered to have terminated employment under this Agreement and shall not
receive benefits pursuant to Section 4 hereof. If Executive is entitled to the
benefits described in Section 4 by reason of clause (a)(ii) above, Executive
shall be entitled to such benefits upon her termination of employment regardless
of whether the Change in Control actually occurs.
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(b) NOTICE OF TERMINATION. Any purported termination of Executive's
employment by the Company or by Executive shall be communicated by written
Notice of Termination to the other Party hereto in accordance with Section 13
hereof. For purposes of this Agreement, a "NOTICE OF TERMINATION" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and the effective date of Executive's termination of employment and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
4. COMPENSATION PAYABLE IN THE EVENT OF TERMINATION.
(a) In the event a Termination Upon a Change in Control occurs,
Executive shall be entitled to receive promptly following Executive's
termination of employment:
(i) (A) unpaid Base Compensation earned or accrued through the
date of termination (including accrued, unused vacation time); (B) the unpaid
portion, if any, of bonuses previously earned by the Executive pursuant to the
Company's Management Incentive Plan or other bonus plans; and (C) payment of an
amount equal to two years' of Executive's Base Compensation, payable in equal
monthly installments over the twenty-four (24)-month period commencing
immediately following Executive's termination of employment (provided, however,
that Executive shall not be entitled to duplicate payments under this Agreement
and the Employment Agreement);
(ii) continued health insurance coverage for Executive and
Executive's eligible dependents for a period of twenty four (24) months, on the
same terms (including costs) as in effect prior to the termination of
Executive's employment;
(iii) reimbursement for reasonable out-of-pocket business
expenses properly incurred but not yet reimbursed by the Company; and
(iv) any other compensation and benefits to which Executive
may be entitled under applicable plans, programs and agreements of the Company.
(b) In addition to the foregoing, in the event that it shall be
determined that any payment or distribution by the Company to or for the benefit
of Executive, whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise (the "PAYMENT"), would constitute an
"excess parachute payment" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), the Payment shall be reduced to
the extent necessary to avoid any portion of any such payment being treated as a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code.
Notwithstanding the foregoing, no such reduction shall occur if, on an after-tax
basis (considering federal income, excise and social security taxes, and
applicable state and local income taxes) such Payment without reduction would
exceed such Payment after the reduction provided for in the preceding sentence.
All determinations to be made under this Paragraph 4(b) shall be made by the
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Company's independent public accountant immediately prior to the Change in
Control (the "ACCOUNTING FIRM"), which firm shall provide its determinations and
any supporting calculations both to the Company and Executive within thirty days
of Executive's termination date. Any such determination by the Accounting Firm
shall be binding upon the Company and Executive. All fees and expenses of the
Accounting Firm in performing the determinations referred to above shall be
borne solely by the Company.
(c) NO MITIGATION; NO OFFSET. In the event of any termination of
Executive's employment under this Agreement, Executive shall be under no
obligation to seek other employment, and there shall be no offset against
amounts due Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that Executive may obtain, provided
that continuation under the Company's employee benefit programs that are
employee welfare benefit plans and programs shall terminate if and to the extent
that substantially equivalent benefits are available through a new employer of
Executive.
(d) NATURE OF PAYMENTS. Any amounts due Executive under this Agreement
in the event of any termination of Executive's employment with the Company are
in the nature of severance payments, or liquidated damages which contemplate
both direct damages and consequential damages that may be suffered as a result
of the termination of Executive's employment, or both, and are not in the nature
of a penalty.
(e) OTHER BENEFITS. The payments due under Section 4 hereof shall be in
addition to and not in lieu of any payments or benefits due to Executive under
any other plan, policy or program of the Company, except that no payments shall
be due to Executive under the Company's then severance pay plan for employees,
if any.
5. TERMINATION BY THE COMPANY. Executive hereby acknowledges that, subject to
the existence of the Employment Agreement, Executive is an "at will" employee of
the Company. Except as provided in Paragraph 3(a)(ii), prior to a Change in
Control, and subject to the terms of the Employment Agreement, Executive hereby
acknowledges that the Company may terminate Executive's employment with the
Company with or without Cause.
6. CONFIDENTIALITY, NON-COMPETE, NON-SOLICITATION AND OTHER PROVISIONS.
Executive agrees and acknowledges that she is subject to the confidentiality and
non-solicitation provisions of the Agreement to Terms and Conditions of
Employment signed by Executive in favor of the Company, and that during the
twenty-four(24)-month period during which severance is payable hereunder,
Executive will not become associated as a principal, partner, employee,
consultant or shareholder (other than a holder of not in excess of 1% of the
outstanding voting securities of any publicly traded company) that is actively
engaged in any business that is competitive with those of the Company or any of
its subsidiaries as in effect on the date of termination of employment.
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7. SUCCESSORS, BINDING AGREEMENT.
(a) The Company 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 Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Executive to compensation from the Company in the same amount and
on the same terms as Executive would be entitled to hereunder if Executive
terminates her employment voluntarily for Good Reason following a Change in
Control of the Company, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the date
of termination. As used in this Agreement, "COMPANY" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. If Executive should die
after Executive's Notice of Termination under circumstances entitling Executive
to benefits hereunder and while any amount would still be payable to Executive
hereunder if Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Executive's devises, legates or other designee or, if there is no such designee,
to Executive's estate.
8. LEGAL FEES. In the event of litigation between Executive and the Company
arising in connection with Executive's attempt to obtain or enforce any right or
benefit provided by this Agreement, the Company agrees to pay the reasonable
attorneys' fees and other legal expenses incurred by Executive in pursuing such
litigation, including a reasonable rate of interest for delayed payment;
provided, however, that Executive shall not be entitled to payments under this
Section 8 if the litigation pursued by Executive is determined to be frivolous.
9. ENTIRE AGREEMENT. The Agreement contains the entire agreement between the
Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the Parties with respect thereto.
10. AMENDMENT OR WAIVER. The Agreement cannot be changed, modified or amended
without the written consent of both Executive and the Company. No waiver by
either Party at any time of any breach by the other Party of any condition or
provision of the Agreement shall be deemed a waiver of a similar or dissimilar
condition or provision at the same or at any prior or subsequent time. Any
waiver must be in writing and signed by Executive or an authorized officer of
the Company, as the case may be.
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11. SURVIVORSHIP. The respective rights and obligations of the Parties hereunder
shall survive any termination of this Agreement to the extent necessary to
effectuate the intent of this Agreement.
12. GOVERNING LAW. The Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York without
reference to principles of conflict of laws.
13. NOTICES. Any notice given to either Party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address as
such Party may subsequently give notice of:
If to the Company:
Del Laboratories, Inc.
000 XxxXxxx Xxxxx, Xxxxxxxxx, XX 00000
Attention: President and CEO
If to Executive:
Xxxxx Xxxxx
00 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
14. HEADINGS. The headings of the sections contained in this Agreement are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
IN WITNESS WHEREOF, the undersigned have executed the Agreement as of
the date first above.
DEL LABORATORIES, INC.
By: ________________________
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
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Xxxxx Xxxxx
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