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Exhibit 10.33
Carlyle Industries, Inc.
c/o Noel Group, Inc.
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March 25, 1998
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▇▇▇▇▇▇▇ Industries, Inc.
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Dear ▇▇. ▇▇▇▇▇:
This letter sets forth and confirms the agreement between Carlyle
Industries, Inc. (the "Company") and you regarding, among other things, the
terms under which your employment with the Company may be terminated, which
terms were approved by the Company's Board of Directors at a meeting held on
February 25, 1998. The agreement between you and the Company is as follows:
1. Severance. If within one year after a Change in Control (as
defined below) of the Company your employment with the Company shall terminate
for any reason, including, without limitation, a voluntary termination or
resignation by you or the termination by the Company for cause or otherwise,
the Company shall pay you, in a single lump sum payment, within 30 days after
such termination, an amount equal to your entire annual base salary then in
effect. For purposes hereof, a "Change of Control" of the Company shall be
deemed to have occurred upon the occurrence of any of the following events:
(i) A change in control of the direction and administration of the
Company's business of a nature that if any securities of the Company were
registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), would be required to be reported in response to (a) Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act,
or (b) Item 1(a) of Form 8-K under the Exchange Act as each is in effect
on the date hereof and any successor provision of such regulations under
the Exchange Act, whether or not the Company is then subject to such
reporting requirements; or
(ii) Any "person" or "group" (as such term is used in connection
with Section 13(d) and 14(d)(2) of the Exchange Act) but excluding any
employee benefit plan of the Company or any "affiliate" or "associate"
of the Company (as
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defined in Regulation 12b-2 under the Exchange Act) (a) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's outstanding securities then
entitled ordinarily (and apart from rights accruing under special circumstances)
to vote for the election of directors or (b) acquires by proxy or otherwise 50%
or more of the combined voting securities of the Company having the right to
vote for the election of directors of the Company, for any merger or
consolidation of the Company, for the election of Directors, or for any other
matter; or
(iii) During any period of twenty-four (24) consecutive months,
the individuals who at the beginning of such period constitute the Board of
Directors of the Company or any individuals who would be "Continuing Directors"
(as hereinafter defined) cease for any reason to constitute at least a majority
thereof. For purposes of this Agreement, "Continuing Directors" shall mean the
directors of the Company in office on the date hereof and any successor to any
such director and any additional director who after the date hereof (i) was
nominated or selected by a majority of the Continuing Directors in office at the
time of his nomination or selection and (ii) who is not an "affiliate" or
"associate" (as defined in Regulation 12b-2 under the Exchange Act) of any
person who is the beneficial owner, directly or indirectly, of securities
representing ten percent (10%) or more of the combined voting power of the
Company's outstanding securities then entitled ordinarily to vote for the
election of directors; or
(iv) There shall be consummated (A) any consolidation, merger or
recapitalization of the Company or any similar transaction involving the
Company, whether or not the Company is the continuing or surviving corporation,
pursuant to which shares of the Company's common stock, par value $.01 per share
("Common Stock"), would be converted into cash, securities or other property,
other than a merger of the Company in which the holders of Common Stock
immediately prior to the merger have the same proportion and ownership of common
stock of the surviving corporation immediately after the merger, (B) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company or (C)
the adoption of a plan of complete liquidation of the Company (whether or not in
connection with the sale of all or substantially all of the Company's assets) or
a series of partial liquidations of the Company that is de jure or de facto part
of a plan of complete liquidation of the Company; provided, that the divestiture
of less than substantially all of the assets of the Company in one transaction
or a series of related transactions, whether effected by sale, lease, exchange,
spin-off, sale of the stock or merger of a subsidiary of the Company or
otherwise, or a transaction solely for the purpose of reincorporating the
Company in another jurisdiction, shall not constitute a "Change in Control"; or
(v) The Board of Directors of the Company shall approve any
merger, consolidation or like business combination or reorganization of the
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Company, the consummation of which would result in the occurrence of any
event described (i), (ii) or (iv) above.
2. Stock Options. The Company confirms that on February 25, 1998 it
granted to you options to purchase 22,222 shares of Common Stock at an exercise
price of $1.3125, which options will become exercisable in five equal annual
increments beginning on the date of grant. The terms of such options are more
fully set forth in the stock option agreement between the Company and you
entered into on the date hereof.
3. General. This Agreement may not be modified except by a written
instrument duly executed by both parties. This Agreement and the performance
hereunder shall be governed by and construed in accordance with the laws of the
State of New York. The failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any right hereunder.
This Agreement and the rights and duties hereunder shall not be assignable by
either party hereto except upon the written consent of the other party. This
Agreement may be executed in counterparts, each of which shall be deemed one
and the same instrument.
Please confirm that the foregoing accurately sets forth our
understanding by executing the enclosed copy of this letter and returning it to
us.
CARLYLE INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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AGREED TO AND ACCEPTED
as of the date of the signature below.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Dated: March 24, 1998
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