EXHIBIT 10.13
April 1, 2002
Xx. Xxxxxxx X. Xxxxxxx
c/o Del Laboratories, Inc.
000 XXX Xxxxx Xxxxxxxxx, XX 1156
Dear Xxxxxxx:
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 President of Del Pharmaceuticals,
Inc. and Vice President of Del, reporting to the Chief Executive Officer of Del.
This Agreement will be effective for a term of four years and nine months
commencing April 1, 2002 and ending December 31, 2006, 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 travel
on Company business. Del agrees to provide six (6) months notice of its intent
not to renew this Agreement. If Del fails to notify you of its intent not to
renew, this Agreement shall remain in effect on the same terms and conditions
until six months after your receipt from the Company of written notice of the
Company's intent not to renew, in which case the provisions of Section 7(c)
shall remain in effect. 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 Seventy Seven Thousand Four Hundred Seventy Eight Dollars
($377,478), 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.
(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) 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 (as reported by you) of such automobile.
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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.
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; 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. If your employment is terminated
by the Company without Cause (as defined in Section 16(b) of this Agreement),
you shall be entitled to continue to participate in the Company's executive
medical program or to receive substantially equivalent medical insurance
coverage for the remainder of the term of this Agreement.
(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) 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, with a minimum of 24 months, 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. The provisions of this Section
7(c) shall survive the termination of your employment, or the expiration or
termination of this Agreement.
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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.
(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.
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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 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
acknowlege 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;
(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
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(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(c), 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 six
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 brings public obloquy upon Del;
(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.
(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.
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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(c) 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, provided that
you shall not be required to work more than sixteen (16) days per month, which
shall include travel days. 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. 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 X. Xxxxxxx
Xxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
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