Exhibit 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 10, 1999, between REVLON CONSUMER
PRODUCTS CORPORATION, a Delaware corporation ("RCPC" and, together with its
parent Revlon, Inc. and its subsidiaries, the "Company"), and XXXXX XXXXXXXX
(the "Executive").
RCPC wishes to continue the employment of the Executive with the Company,
and the Executive wishes to accept continued employment with the Company, on the
terms and conditions set forth in this Agreement.
Accordingly, RCPC and the Executive hereby agree as follows:
Employment, Duties and Acceptance.
1.1 Employment, Duties. RCPC hereby employs the Executive for the Term
(as defined in Section 2.1), to render exclusive and full-time services to the
Company, in the Executive's present capacity as chief financial officer of
Revlon, Inc. and to perform such other duties of at least an equivalent level as
may be assigned by the Chief Executive Officer of Revlon, Inc. or his delegate.
The Executive's title shall be Executive Vice President and Chief Financial
Officer or such other title of at least equivalent level consistent with the
Executive's duties from time to time as may be assigned to the Executive by the
Chief Executive Officer of Revlon, Inc.
1.2 Acceptance. The Executive hereby accepts such employment and agrees
to render the services described above. During the Term, the Executive agrees to
serve the Company faithfully and to the best of the Executive's ability, to
devote the Executive's entire business time, energy and skill to such
employment, and to use the Executive's best efforts, skill and ability to
promote the Company's interests.
1.3 Location. The duties to be performed by the Executive hereunder
shall be performed primarily at the office of Revlon, Inc. in the New York City
metropolitan area, subject to reasonable travel requirements consistent with the
nature of the Executive's duties from time to time on behalf of the Company.
2. Term of Employment; Certain Post-Term Benefits.
2.1 The Term. The term of the Executive's employment under this
Agreement (the "Term") shall commence on the date hereof (the "Effective Date")
and shall end on such date as is provided pursuant to Section 2.2.
2.2 End-of-Term Provisions. At any time after the Effective Date RCPC
shall have the right to give written notice of non-extension of the Term. In the
event the Company gives such notice of non-extension, the Term automatically
shall be extended so that it ends on the third anniversary of
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the date on which RCPC gives such notice. The giving of such notice shall not be
deemed to be a breach of this Agreement by RCPC for purposes of Section 4.4.
During any period that the Executive's employment shall continue following
termination of the Term, the Executive shall be eligible for severance on terms
no less favorable than those of the Revlon Executive Severance Policy as in
effect on the date of this Agreement, other than the provision in
Paragraph III C(ii) establishing a limit of six months on the lump sum provided
for therein, which shall not apply to the Executive, upon the Executive's
compliance with the terms thereof, and the Executive shall be deemed to be an
employee at will.
2.3 Special Curtailment. The Term shall end earlier than the date
provided in Section 2.2, if sooner terminated pursuant to Section 4.
3. Compensation; Benefits.
3.1 Salary. As compensation for all services to be rendered pursuant to
this Agreement, RCPC agrees to pay the Executive during the Term a base salary,
payable bi-weekly in arrears, at the annual rate of not less than $500,000 (the
"Base Salary"). All payments of Base Salary or other compensation hereunder
shall be less such deductions or withholdings as are required by applicable law
and regulations. In the event that RCPC, in its sole discretion, from time to
time determines to increase the Base Salary, such increased amount shall, from
and after the effective date of the increase, constitute "Base Salary" for
purposes of this Agreement.
3.2 Bonus. In addition to the amounts to be paid to the Executive
pursuant to Section 3.1, the Executive shall receive with respect to calendar
year 1999 a bonus equal to 75% of the Executive's Base Salary at the rate in
effect during such calendar year, and commencing January 1, 2000, in lieu of
annual payments of bonus the Executive shall receive equal bi-weekly
installments of bonus in an annual amount equal to 75% of the Executive's Base
Salary in effect on the date hereof.
3.3 Stock Options. The Executive shall be recommended to the
Compensation Committee or other committee of the Board administering the Revlon,
Inc. Second Amended and Restated 1996 Stock Plan or any plan that may replace
it, as from time to time in effect, to receive an option not later than
February 28 of each year of the Term, commencing in 1999, each such option to
cover a minimum of 40,000 shares of Revlon Common Stock, to have a term of 10
years, to have an option exercise price equal to the market price of Revlon
Common Stock on the date of grant, and otherwise to be on terms substantially
the same as other senior executives of the Executive's level, provided that if
the Term is to end pursuant to Section 2.2 otherwise than at a calendar year
end, RCPC shall not be required to recommend that the stock option to be granted
to the Executive with respect to such final year of the Term cover more than
that number of shares that is the product of multiplying the annual grant
provided for above by a fraction of which the numerator is the number of days of
the Term during such final year and the denominator is 365, and provided further
that if the Term is to end pursuant to Section 4.4 on or before June 30, 2000,
RCPC shall not be required to recommend that the stock option to be granted to
the Executive with respect to the year 2000 cover more than 20,000 shares and if
the Term so ends subsequent to the grant of options with respect to the year
2000, the Executive agrees to forfeit and surrender to the Company such portion
of the stock option granted with respect to such year as covers more than 20,000
shares, and provided finally that this Section 3.3 shall not apply following a
Triggering Event. In connection with any termination of
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the Executive's employment pursuant to Section 4.4, RCPC shall recommend to the
Compensation Committee (or other committee of the Board of Directors at the time
administering the Stock Plan) that all stock options then held by the Executive
become immediately exercisable and remain so exercisable for a period of two
years from the date of termination, whereupon any stock options still remaining
outstanding and unexercised shall automatically terminate, provided that if the
Executive violates Section 5.2 of this Agreement, in addition to all other
rights and remedies of the Company the Executive agrees to forfeit and surrender
to the Company all then outstanding stock options granted to the Executive in
May 1999 covering 25,000 shares of Revlon Common Stock and to pay over to the
Company all after tax gain realized by the Executive upon any exercise of such
May 1999 stock options.
3.4 Business Expenses. RCPC shall pay or reimburse the Executive for
all reasonable expenses actually incurred or paid by the Executive during the
Term in the performance of the Executive's services under this Agreement,
subject to and in accordance with the Company's applicable expense reimbursement
and related policies and procedures as in effect from time to time.
3.5 Vacation. During each year of the Term, the Executive shall be
entitled to a vacation period or periods of four weeks taken in accordance with
the vacation policy of the Company as in effect from time to time.
3.6 Fringe Benefits.
(i) During the Term, the Executive shall be entitled to participate in
those qualified and non-qualified defined benefit, defined contribution, group
insurance, medical, dental, disability and other benefit plans of the Company as
from time to time in effect made available to senior executives of the Company
generally and in the Company's Executive Medical and Dental Plan as the same may
be in effect from time to time. In addition, during the Term the Executive shall
be entitled to the use of a Company-provided automobile in accordance with the
Company's executive automobile policy and guidelines, of a class at least
comparable to the automobile currently assigned to the Executive.
(ii) During the Term RCPC shall maintain an individual policy of
disability insurance, naming the Executive as the insured and the Executive or a
designee as the beneficiary, with a benefit equal to (A) fifty percent of the
sum of the Executive's Base Salary in effect on the date of disability plus the
Executive's most recent annual bonus pursuant to Section 3.2 less (B) the
long-term disability benefit payable under the Company's group disability
program as in effect from time to time (irrespective of whether the Executive
has elected to participate in such long-term disability program).
4. Termination.
4.1 Death. If the Executive shall die during the Term, the Term shall
terminate with the same effect as if the Executive had terminated the Term
pursuant to Section 4.4.
4.2 Disability. If during the Term the Executive shall become
physically or mentally disabled, whether totally or partially, such that the
Executive is unable to perform the Executive's services hereunder for (i) a
period of six consecutive months or (ii) shorter periods aggregating six months
during any twelve month period, RCPC may at any time after the last day of the
six
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consecutive months of disability or the day on which the shorter periods of
disability shall have equaled an aggregate of six months, by written notice to
the Executive (but before the Executive has returned to active service following
such disability), terminate the Term and no further amounts or benefits shall be
payable hereunder, except that the Executive shall be entitled to receive until
the first to occur of (x) the Executive ceasing to be disabled or (y) the
Executive's attaining the age of 65, continued coverage for the Executive under
the Company's group life insurance plan and for the Executive and his spouse and
children, if any, under the Company's group medical plan, to the extent
permitted by such plans and to the extent such benefits continue to be provided
to the Company's senior executives generally.
4.3 Cause. RCPC may at any time by written notice to the Executive
terminate the Term for "Cause" and, upon such termination, the Executive shall
be entitled to receive no further amounts or benefits hereunder, except as
required by law. As used herein the term "Cause" shall mean (i) the conviction
of the Executive of any felony involving the property of the Company or directed
against any director, officer, employee or agent of the Company, (ii) willful
misconduct by the Executive in connection with the performance of the
Executive's duties hereunder, or (iii) willful refusal by the Executive to
comply with proper instructions of the Chief Executive Officer of RCPC, provided
in the case of clause (ii) or (iii) that the Executive shall fail to correct
such misconduct or disobedience within 10 days after notice thereof from RCPC.
4.4 Company Breach; Other Termination.
4.4.1 In the event of the breach of any material provision of this
Agreement by RCPC or the failure of the Compensation Committee (or other
appropriate Committee of the Company's Board of Directors) to fully implement
RCPC's recommendation pursuant to Section 3.3, the Executive shall be entitled
to terminate the Term and the Executive's employment upon 60 days' prior written
notice to the Company. In addition, at any time following a Triggering Event (as
hereinafter defined), the Executive shall be entitled to terminate the Term and
the Executive's employment upon 60 days' prior written notice to the Company for
Good Reason (as hereinafter defined) or upon six months' prior written notice to
the Company without Good Reason, and whether or not there shall have occurred a
Triggering Event, either the Company or the Executive shall be entitled to
terminate the Term and the Executive's employment upon not less than 30 days'
prior written to the other effective June 30, 2000. As used herein:
"Triggering Event" shall mean the first to occur of any of the
following:
(i) a merger of or combination involving Revlon, Inc. or RCPC or any
parent thereof other than a merger or combination in which more than 50% in
voting power of the voting securities of the surviving or resulting corporation
or other entity outstanding immediately after such transaction is beneficially
owned (as such term is defined in Section 13(d) of the Securities Exchange Act
of 1934, as amended) by persons who beneficially owned outstanding voting
securities of Revlon, Inc. immediately prior to such transaction, or the
execution of a definitive agreement for such a merger or combination, provided
the same is in fact consummated;
(ii) the adoption of a Plan contemplating the liquidation of all or
substantially all of the business and assets of the Company;
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(iii) a sale or other disposition of all or substantially all of the
assets of the Company or of the business unit to which the Executive's services
are at the time dedicated, if any, whether for cash, securities or other
property, other than to a corporation or other entity in which more than 50% in
voting power of the outstanding voting securities outstanding immediately after
such transaction is beneficially owned by persons who beneficially owned
outstanding voting securities of Revlon, Inc. immediately prior to such
transaction, or the execution of a definitive agreement for such a sale or other
disposition, provided the same is in fact consummated; or
(iv) more than 50% of the voting power of the outstanding voting
securities of Revlon, Inc. becomes beneficially owned, directly or indirectly,
by one person or more than one person acting as a group other than the current
beneficial owner of the ultimate parent company of Revlon, Inc., and
"Good Reason" shall mean any of the following occurring following a
Triggering Event which is not agreed to in writing by the Executive:
(i) a substantial adverse change in the Executive's assigned
responsibilities,
(ii) a relocation of the Executive's principal place of business to a
location which increases the Executive's round-trip commutation by more than
50 miles,
(iii) failure of the Executive to continue participation in bonus,
salary review and equity incentive (or equivalent cash incentive) plans and
programs at least substantially equivalent to those provided to the Executive
prior to the Triggering Event, or
(iv) the failure of the Executive to participate in all material
employee benefit plans and fringe benefit arrangements on substantially the same
basis as like executives of the major business unit of which the Executive is a
part,
provided however that none of the foregoing events shall constitute "Good
Reason" unless within 30 days after obtaining actual knowledge of such event the
Executive gives written notice to the Company of the Executive's intention to
resign, specifically identifying the event constituting Good Reason therefor,
and the Company shall fail to cure such event within 30 days after such notice.
4.4.2 In consideration of the Executive's covenant in Section 5.2, upon
the Executive's death or upon termination under Section 4.4.1 by the Executive
or the Company, RCPC agrees, and the Company's sole obligation arising from such
termination (except as otherwise provided in Sections 3.2, 3.3 and 3.6) shall be
for RCPC to make the bi-weekly installment payments of target bonus in the
amounts prescribed by Section 3.2 and bi-weekly installment payments in lieu of
Base Salary in the amounts prescribed by Section 3.1, and to continue the
Executive's participation in the group life insurance and in the medical and
dental plans of the Company in which the Executive was entitled to participate
pursuant to Section 3.6 (in each case less amounts required by law to be
withheld) through the date on which the Term would otherwise have expired if
RCPC had given notice of non-extension of the Term pursuant to Section 2.2 on
the date of termination, such payments to be made and such benefits to be
provided to the Executive or, in the event of his death prior to end of such
period, to the Executive's estate, provided that such benefit continuation is
subject to the terms of such plans,
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provided further that such group life insurance continuation is subject to a
limit of two years pursuant to the terms thereof, provided further that the
Executive and his immediate family shall cease to be covered by medical and/or
dental plans of the Company at such time as the Executive becomes covered by
like plans of another company, and provided finally that the Executive (or his
legal representative) shall, as a condition, execute such release and
confidentiality covenants as would be required in order for the Executive to
receive payments and benefits under the Executive Severance Policy of the
Company as at the time in effect. Whether or not such termination of employment
pursuant to Section 4.1 or 4.4.1 shall occur following a Triggering Event, the
Executive (or his estate) shall have no duty to mitigate by seeking other
employment or otherwise and no compensation earned by the Executive from other
employment or a consultancy shall reduce the payments provided for by clause
(i) or (ii).
4.5 Section 280G.
4.5.1 If it shall be determined by the firm of Ernst & Young (or if
such firm shall be unable to serve, by another so-called Big 5 accounting firm
selected by such firm) ("E&Y") that there is not substantial authority to
support the deductibility for federal income tax purposes of one or more
payments or benefits due to the Executive, pursuant to this Agreement or
otherwise, by reason of section 280G of the Internal Revenue Code as amended
(the "Code") or any successor provisions, then RCPC shall reduce the payments in
lieu of target bonus and then the payments in lieu of Base Salary provided for
in Section 4.4 (said reductions to be applied in inverse order against the last
payments otherwise due) to the extent necessary to avoid or, if full avoidance
is not possible by such reductions, to minimize, the loss of deductions
described above, but only if and to the extent that E&Y determines that on an
after-tax basis such reduction is more favorable to the Executive than foregoing
such reduction. The parties agree that all income tax returns filed for the
periods affected by the foregoing shall be filed on a basis consistent with the
determinations of E&Y pursuant hereto, and that the determinations of E&Y with
respect to the foregoing shall be final and binding and not subject to judicial
or other review (except by E&Y at its own instance before or after any filing).
RCPC shall pay all fees and charges of E&Y in connection with this Section 4.5.
4.5.2 The parties acknowledge that as a result of uncertainty in the
application of Section 280G of the Code at the time of any determination by E&Y
pursuant to Section 4.5.1, it is possible that amounts will be paid or
distributed by RCPC to or for the benefit of the Executive which the parties
intended under Section 4.5.1 not to have been paid or distributed (an
"Overpayment") or that amounts will not be paid or distributed by RCPC to or for
the benefit of the Executive that the parties intended under Section 4.5.1 to
have been paid or distributed (an "Underpayment"). In the event that E&Y (based
upon the assertion of a deficiency by the Internal Revenue Service against RCPC
or its affiliates or against the Executive or at E&Y's own instance before or
after any filing or deficiency) determines that an Overpayment or an
Underpayment has been made, such amount shall be treated for all purposes as a
loan by RCPC (in the case of an Overpayment) or by the Executive (in the case of
an Underpayment) to the other party which shall, promptly following notice of
such determination by E&Y, be repaid together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code, provided that no
loan shall be deemed to have been made and no amount shall be required to be
repaid pursuant to this Section 4.5.2 to the extent that in the opinion of
counsel to the Company such loan and repayment would not either reduce the
amount on which the Executive is subject to excise tax or increase the amount of
payments that are deductible by the Company in relation to Section 280G of the
Code.
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4.6 Litigation Expenses. If RCPC and the Executive become involved in
any action, suit or proceeding relating to the alleged breach of this Agreement
by RCPC or the Executive, then if and to the extent that a final judgment in
such action, suit or proceeding is rendered in favor of the Executive, RCPC
shall reimburse the Executive for all expenses (including reasonable attorneys'
fees) incurred by the Executive in connection with such action, suit or
proceeding or the portion thereof adjudicated in favor of the Executive. Such
costs shall be paid to the Executive promptly upon presentation of expense
statements or other supporting information evidencing the incurrence of such
expenses.
5. Protection of Confidential Information; Non-Competition.
5.1 The Executive acknowledges that the Executive's services will be
unique, that they will involve the development of Company-subsidized
relationships with key customers, suppliers, and service providers as well as
with key Company employees and that the Executive's work for the Company has
given and will give the Executive access to highly confidential information not
available to the public or competitors, including trade secrets and confidential
marketing, sales, product development and other data and plans which it would be
impracticable for the Company to effectively protect and preserve in the absence
of this Section 5 and the disclosure or misappropriation of which could
materially adversely affect the Company. Accordingly, the Executive agrees:
5.1.1 except in the course of performing the Executive's duties
provided for in Section 1.1, not at any time, whether during or after the
Executive's employment with the Company, to divulge to any other entity or
person any confidential information acquired by the Executive concerning the
Company's or its affiliates' financial affairs or business processes or methods
or their research, development or marketing programs or plans, any other of its
or their trade secrets, any information regarding personal matters of any
directors, officers, employees or agents of the Company or its affiliates or
their respective family members, or any information concerning the circumstances
of the Executive's employment and any termination of the Executive's employment
with the Company or any information regarding discussions related to any of the
foregoing. The foregoing prohibitions shall include, without limitation,
directly or indirectly publishing (or causing, participating in, assisting or
providing any statement, opinion or information in connection with the
publication of) any diary, memoir, letter, story, photograph, interview,
article, essay, account or description (whether fictionalized or not) concerning
any of the foregoing, publication being deemed to include any presentation or
reproduction of any written, verbal or visual material in any communication
medium, including any book, magazine, newspaper, theatrical production or movie,
or television or radio programming or commercial. In the event that the
Executive is requested or required to make disclosure of information subject to
this Section 5.1.1 under any court order, subpoena or other judicial process,
the Executive will promptly notify RCPC, take all reasonable steps requested by
RCPC to defend against the compulsory disclosure and permit RCPC to control with
counsel of its choice any proceeding relating to the compulsory disclosure. The
Executive acknowledges that all information the disclosure of which is
prohibited by this section is of a confidential and proprietary character and of
great value to the Company.
5.1.2 to deliver promptly to the Company on termination of the
Executive's employment with the Company, or at any time that RCPC may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints
and other documents (and all copies thereof) relating to the Company's
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business and all property associated therewith, which the Executive may then
possess or have under the Executive's control.
5.2 In consideration of RCPC's covenant in Section 4.4, the Executive
agrees that during a period of 18 months commencing on the date of termination
of the Executive's employment by the Executive or by the Company, whether
pursuant to Section 4.4 or otherwise, the Executive in all respects fully shall
comply with the terms of the Employee Agreement as to Confidentiality and
Non-Competition referred to in the Revlon Executive Severance Policy (the
"Non-Competition Agreement"), which is incorporated herein by reference with the
same effect as if the same were set forth herein in full, subject only to the
Company continuing during such period to make payments in accordance with
Section 4.4, in the case of a termination of employment covered by Section 4.4,
or equal to the Executive's bi-weekly installments of Base Salary, in case of a
termination of employment not covered by Section 4.4, provided however that the
term "Restricted Entity" as used in the Non-Competition Agreement shall not be
deemed to include any entity that does not conduct a color cosmetics business.
In the case of inconsistencies between the Non-Competition Agreement and this
Agreement, the parties agree that this Agreement shall control.
5.3 If the Executive commits a breach of any of the provisions of
Sections 5.1 or 5.2 hereof, RCPC shall have the following rights and remedies:
5.3.1 the right and remedy to immediately terminate all further
payments and benefits provided for in this Agreement, except as may otherwise be
required by law in the case of qualified benefit plans,
5.3.2 the right and remedy to have the provisions of this Agreement
(including the forfeiture provisions of Section 3.3) specifically enforced by
any court having equity jurisdiction, it being acknowledged and agreed that any
such breach will cause irreparable injury to the Company and that money damages
and disgorgement of profits will not provide an adequate remedy to the Company,
and, if the Executive attempts or threatens to commit a breach of any of the
provisions of Sections 5.1 or 5.2, the right and remedy to be granted a
preliminary and permanent injunction in any court having equity jurisdiction
against the Executive committing the attempted or threatened breach (it being
agreed that each of the rights and remedies enumerated above shall be
independent of the others and shall be severally enforceable, and that all of
such rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to RCPC under law or in equity), and
5.3.3 the right and remedy to require the Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits (collectively "Benefits") derived or received by the Executive
as the result of any transactions constituting a breach of any of the provisions
of Sections 5.1 or 5.2 hereof, and the Executive hereby agrees to account for
and pay over such Benefits as directed by RCPC.
5.4 If any of the covenants contained in Sections 5.1, 5.2 or 5.3, or
any part thereof, hereafter are construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions.
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5.5 If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, are held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or area of
such provision so as to be enforceable to the maximum extent permitted by
applicable law and, in its reduced form, said provision shall then be
enforceable.
5.6 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 5.1, 5.2 and 5.3 upon the courts of
any state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect RCPC's right to the relief provided above in the courts of any other
states within the geographical scope of such covenants as to breaches of such
covenants in such other respective jurisdictions, the above covenants as they
relate to each state being for this purpose severable into diverse and
independent covenants.
5.7 Any termination of the Term or the Executive's employment shall
have no effect on the continuing operation of this Section 5.
6. Inventions and Patents.
6.1 The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during the Term shall belong to the Company,
provided that such Inventions grew out of the Executive's work with the Company
or any of its subsidiaries or affiliates, are related in any manner to the
business (commercial or experimental) of the Company or any of its subsidiaries
or affiliates or are conceived or made on the Company's time or with the use of
the Company's facilities or materials. The Executive shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of the Executive's
inventorship.
6.2 If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Executive within two
years after the termination of the Executive's employment with the Company, it
is to be presumed that the Invention was conceived or made during the Term.
6.3 The Executive agrees that the Executive will not assert any rights
to any Invention as having been made or acquired by the Executive prior to the
date of this Agreement, except for Inventions, if any, disclosed to the Company
in writing prior to the date hereof.
7. Intellectual Property.
Notwithstanding and without limitation of Section 6, the Company shall be
the sole owner of all the products and proceeds of the Executive's services
hereunder, including, but not limited to, all materials, ideas, concepts,
formats, suggestions, developments, arrangements, packages, programs and
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other intellectual properties that the Executive may acquire, obtain, develop or
create in connection with or during the Term, free and clear of any claims by
the Executive (or anyone claiming under the Executive) of any kind or character
whatsoever (other than the Executive's right to receive payments hereunder). The
Executive shall, at the request of RCPC, execute such assignments, certificates
or other instruments as RCPC may from time to time deem necessary or desirable
to evidence, establish, maintain, perfect, protect, enforce or defend its right,
title or interest in or to any such properties.
8. Indemnification.
RCPC will indemnify the Executive, to the maximum extent permitted by
applicable law, against all costs, charges and expenses incurred or sustained by
the Executive in connection with any action, suit or proceeding to which the
Executive may be made a party, brought by any shareholder of the Company
directly or derivatively or by any third party by reason of any act or omission
of the Executive as an officer, director or employee of the Company or of any
subsidiary or affiliate of the Company.
9. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by overnight courier or mailed
first class, postage prepaid, by registered or certified mail (notices mailed
shall be deemed to have been given on the date mailed), as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
If to the Company, to:
Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Executive, to the Executive's principal residence as reflected in
the records of the Company.
10. General.
10.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
between residents thereof and to be performed entirely in New York.
10.2 The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
10.3 This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or
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inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
10.4 This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive, nor may the Executive pledge,
encumber or anticipate any payments or benefits due hereunder, by operation of
law or otherwise. RCPC may assign its rights, together with its obligations,
hereunder (i) to any affiliate or (ii) to a third party in connection with any
sale, transfer or other disposition of all or substantially all of any business
to which the Executive's services are then principally devoted, provided that no
assignment pursuant to clause (ii) shall relieve RCPC from its obligations
hereunder to the extent the same are not timely discharged by such assignee.
10.5 This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
10.6 This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Subsidiaries and Affiliates. As used herein, the term "subsidiary" shall
mean any corporation or other business entity controlled directly or indirectly
by the corporation or other business entity in question, and the term
"affiliate" shall mean and include any corporation or other business entity
directly or indirectly controlling, controlled by or under common control with
the corporation or other business entity in question.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
/s/ XXXXX XXXXXXXX
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XXXXX XXXXXXXX
