EXHIBIT 10(C)
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SUPPLY AGREEMENT
BY AND BETWEEN
REVLON CONSUMER PRODUCTS CORPORATION
AND
THE COSMETIC CENTER, INC.
DATED AS OF APRIL 25, 1997
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SUPPLY AGREEMENT
AGREEMENT (this "Agreement") dated as of April 25, 1997 between
Revlon Consumer Products Corporation, a Delaware corporation ("Revlon"), and
The Cosmetic Center, Inc., a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, prior to the date hereof, Revlon supplied to its wholly owned
subsidiary, Prestige Fragrance & Cosmetics Inc., a Delaware corporation
("PFC"), certain cosmetics, fragrances, skin care and personal care products;
WHEREAS, pursuant to that certain Merger Agreement dated as of
November 27, 1996 and amended as of February 20, 1997 and March 20, 1997 (the
"Purchase Agreement"), by and among Revlon, PFC and Buyer, contemporaneously
with the execution and delivery of this Agreement, PFC was merged with and
into Buyer, with Buyer being the survivor of such Merger;
WHEREAS, in connection with the foregoing, Buyer desires to purchase
from Revlon, and Revlon is willing to sell, or cause to be sold, to Buyer for
resale at Buyer's Cosmetic Center retail stores ("Cosmetic Center Stores") and
PFC retail stores ("PFC Stores") certain cosmetics, fragrances, skin care and
personal care products as provided for in this Agreement, for the consideration
and upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1.
SALE OF PRODUCTS
SECTION 1.01 SALE OF PRODUCTS. Subject to the terms and conditions of
this Agreement, for a period of four (4) years from the date hereof (the
"Supply Term"), Revlon will sell, or will cause to be sold, to Buyer its
requirements of (a) cosmetics, fragrances, skin care and personal care products
manufactured and sold by Revlon ("Revlon Products") that are first quality and
on Revlon's then current order form ("First Quality Products"), (b) Revlon
Products that have been returned to Revlon and which are coded in Revlon's
inventory system as "211" merchandise or have been discontinued or are no
longer on Revlon's then current order form and which are coded in Revlon's
inventory system as "261" merchandise (collectively, "Returned/Discontinued
Products") and (c) First Quality Products that are in excess of Revlon's needs
("Excess Products").
Notwithstanding anything herein to the contrary, Revlon's obligation
to supply Revlon Products pursuant to this Agreement shall be subject in its
entirety to the availability of such Revlon Products and, if and to the extent
that there are limited supplies of Revlon Products, Revlon shall be entitled to
allocate such limited supplies of any such Revlon Products among its customers
(including any subsidiaries or affiliates of Revlon) in its sole and absolute
discretion. Revlon shall have no obligation hereunder to manufacture any Revlon
Products in order to fulfill any orders for Revlon Products submitted by Buyer.
SECTION 1.02 SELLING PRICE OF REVLON PRODUCTS. During the Supply Term,
the purchase price (the "Prices") for the Revlon Products shall be as follows:
(a) the purchase price for First Quality Products shall be Revlon's normal
trade prices; (b) the purchase price for Returned/Discontinued Products shall
be Revlon's fully allocated cost of goods plus 8.1%; and (c) the purchase price
for Excess Products shall be at a price mutually acceptable to Revlon and
Buyer.
SECTION 1.03 SHIPMENT OF REVLON PRODUCTS; BUYER'S TITLE. Revlon shall
ship or cause to be shipped any Revlon Products purchased by Buyer pursuant to
this Agreement FOB Revlon's manufacturing or warehouse facilities (for purposes
of price, payment and risk of loss). Buyer shall take title to Revlon Products
purchased by Buyer pursuant to this Agreement upon shipment as provided in this
Section 1.03, F.O.B. Revlon's manufacturing or warehouse facilities.
SECTION 1.04 REJECTS AND RETURNS; PRODUCT WARRANTIES.
(a) Revlon represents and warrants that the First Quality Products and
Excess Products (i) were manufactured in accordance with all applicable laws,
statutes, ordinances and regulations in effect from time to time, including,
without limitation, any such laws relating to protection of the environment and
(ii) will conform to the specifications therefor and to all applicable
governmental rules and regulations. Except with respect to latent or hidden
defects, the representations and warranties of Revlon contained in this Section
1.04(a) shall not survive any inspection, delivery, acceptance or payment by
Buyer for such Revlon Products. REVLON MAKES NO WARRANTIES OF MERCHANTABILITY
OR OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS OR IMPLIED
WARRANTY, EXCEPT AS SET FORTH ABOVE. WITH RESPECT TO ANY RETURNED/DISCONTINUED
PRODUCTS, BUYER TAKES SUCH PRODUCTS "AS IS" AND REVLON MAKES NO WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS OR
IMPLIED WARRANTY.
(b) No Revlon Product may be returned to Revlon (or its designee)
unless Revlon has authorized the return in writing, provided, however, that
Revlon will accept returns of First Quality Products and Excess Products that
were defective at the time of shipment if Buyer gives Revlon notice of such
defect within ten (10) days following the date of delivery to Buyer with
respect to any defect apparent on the surface, and within ninety (90) days
after the date of delivery with respect to any latent or hidden defect. Revlon
shall not in any event be responsible for any defect, damage or deficiency that
arises following shipment FOB Revlon's facilities.
SECTION 1.05 RESALE OF REVLON PRODUCTS. Buyer agrees that any Revlon
Products purchased by Buyer pursuant to this Agreement will be sold by Buyer
only in retail stores and that any Returned/Discontinued Products will be sold
only in PFC Stores. Without limiting the generality of the foregoing, Buyer
agrees that it shall not sell any Returned/Discontinued Products in Cosmetic
Center Stores and will not sell any Revlon Products through wholesale channels
of distribution or to any third parties (other than retail customers of its
retail stores). If requested by Revlon, Buyer agrees to provide to Revlon and
its representatives access to its facilities, management and books and records
at reasonable times upon advance notice and in a manner which is not disruptive
to Buyer's operations in order to permit Revlon to monitor compliance with this
Section 1.05.
ARTICLE 2
PROVISIONS OF GENERAL APPLICATION
SECTION 2.01 PAYMENT OF PRICE. Buyer shall pay the Price against
Revlon's detailed invoice and supporting documentation including item, quantity
and shipment dates net 30 days after shipment.
SECTION 2.02 EARLY TERMINATION. (a) Notwithstanding anything herein to
the contrary, if there is a change of control (as defined below) of Buyer at
any time after the date hereof but prior to the end of the Supply Term,
Revlon may terminate this Agreement upon not less than one year's prior written
notice to Buyer; provided, however, that in no event may Revlon terminate this
Agreement prior to the second anniversary of the date hereof. A "change in
control" of Buyer for purposes of this Agreement shall be deemed to have taken
place if (A) Revlon together with its affiliates no longer has the power to
vote, directly or indirectly, whether through record or beneficial ownership, a
voting trust arrangement, or other contractual arrangement, a majority of the
voting power of outstanding shares of Buyer or (B) all or substantially all of
Buyer's assets are sold to any person other than an affiliate. For purposes of
this Section 2.02, a "person" includes an individual, corporation, partnership,
trust, association, joint venture, pool, syndicate, unincorporated
organization, joint-stock company, or similar organization or group acting in
concert. A person for these purposes shall be deemed to be a beneficial owner
as that term is used in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended.
(c) Notwithstanding anything to the contrary, Revlon may terminate
this Agreement (A) upon 30 days' prior written notice if Buyer is in default of
the provisions of Section 1.05, (B) immediately if Buyer is liquidated or
dissolved or adopts a plan of liquidation or (C) immediately if Buyer shall:
(i) file a voluntary petition in bankruptcy or file a voluntary petition or
otherwise commence any action or proceeding seeking reorganization, arrangement
or readjustment of its debts or for any other relief under the Federal
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or
law, state or federal, now or hereafter existing, or consent to, approve of, or
acquiesce in, any such petition, action or proceeding; (ii) apply for or
acquiesce in the appointment of a receiver, assignee, liquidator, sequestrator,
custodian, trustee or similar officer for it or for all or any part of its
Property; (iii) make an assignment for the benefit of creditors; or (iv) be
unable generally to pay its debts as they become due; or (D) immediately if an
involuntary petition shall be filed or an action or proceeding otherwise
commenced seeking reorganization, arrangement or readjustment of Buyer's debts
or for any other relief under the Federal Bankruptcy Code, as amended, or under
any other bankruptcy or insolvency act or law, state or federal, now or
hereafter existing and such petition, action or proceeding shall not be
dismissed within 60 days from such filing or commencement.
SECTION 2.03 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Neither party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the written consent of the other party hereto,
except that Revlon may assign, delegate or otherwise transfer any or all of its
rights or obligations under this Agreement to any of its affiliates or to any
successor to its business (by merger, consolidation, sale of stock or assets,
or otherwise); provided that no assignment shall release Revlon from its
obligations and liabilities under this Agreement.
SECTION 2.04 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements, understandings and negotiations,
both written and
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oral, between the parties with respect to the subject matter of this Agreement.
No representation, inducement, promise, understanding, condition or warranty
not set forth herein has been made or relied upon by either party hereto. No
agreement or understanding modifying or amending this Agreement shall be
binding upon either party hereto unless in writing and signed by a duly
authorized officer thereof.
SECTION 2.05 THIRD PARTIES. Except as otherwise provided herein, this
Agreement is not intended to and shall not confer upon any other Person other
than the parties hereto and their affiliates, any rights or remedies with
respect to the subject matter hereof.
SECTION 2.06 NOTICES. Any notice or other communication required or
permitted hereunder shall be made in writing and shall be delivered personally,
sent by certified or registered mail (postage prepaid), or sent by facsimile
transmission, and shall be deemed given when so delivered personally, sent by
facsimile transmission, or, if mailed, four days after the date of deposit in
the United States mails. All communications hereunder shall be delivered to the
respective parties at the following addresses (or to such other person or at
such other address for a party as shall be specified by like notice, provided
that notices of a change of address shall be effective only upon receipt
thereof):
(c) If to Revlon, to:
Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President and Corporate Secretary
and by telecopy to: (000) 000-0000
(d) If to Buyer, to:
The Cosmetic Center, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
and by telecopy to: (000) 000-0000
SECTION 2.07 GOVERNING LAW. The parties hereto agree that all of the
provisions of this Agreement and any questions concerning its interpretation
and enforcement shall be governed by the laws of the State of New York
applicable to agreements executed in New York to be wholly performed in New
York by residents of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and the year first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE COSMETIC CENTER, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President - Finance
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