Exhibit 10.8
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into
by and between Renaissance Cosmetics, Inc., a Delaware corporation (the
"Company") and River International, Inc. ("RII") whose president is Xxxxxx X.X.
Kaung ("Kaung") (RII and Kaung are together referred to herein as "Consultant")
as of this 1st day of December, 1997. The Company and the Consultant are
sometimes referred to herein individually as a "Party" and together as the
"Parties."
WHEREAS, the Company desires to hire Consultant to provide
consulting services for the Company and its affiliates under the terms and
conditions set forth herein with the express understanding that Kaung will be
the sole and exclusive provider of consulting services hereunder on behalf of
RII absent mutual agreement of the Parties to the contrary; and
WHEREAS, Consultant desires to be engaged to provide
consulting services for the Company under the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Consulting Agreement; Term. The Company hereby engages
Consultant as a consultant to the Company and each of its affiliated entities
and businesses and Consultant accepts such engagement commencing on December 1,
1997 and continuing for a period of eight (8) months thereafter (the "Consulting
Term"). The Consulting Term may be extended by agreement of the Parties on
mutually acceptable terms and conditions.
2. Consulting Duties. During the Consulting Term, the
Consultant shall provide such advisory and consulting services to the Company
and its affiliates as may be designated from time to time by the Board of
Directors of the Company (the "Board"), the Chief Executive Officer of the
Company (the "CEO"), the Chief Financial Officer of the Company or the
applicable General Manager or Group Vice President as determined by the Company
for each project on which Consultant provides consulting services. Consultant
shall report to the CEO and shall perform Consultant's duties consistent with
the best interests of the Company and the policies and guidelines of the Company
as in effect at any time and from time to time, to the best of Consultant's
ability, and in a diligent manner.
3. Retainer Fee. During the initial eight (8) months of the
Consulting Term, the Company shall pay to Consultant a retainer fee (the
"Retainer Fee") in the amount of $22,000 per month. In the event the Consulting
Term is extended beyond the initial eight (8) months, the Company the Retainer
Fee shall be $2,000 per day, or such other amount as mutually agreed. The
Company shall also reimburse Consultant for reasonable out-of-pocket business
expenses incurred in connection with the services provided to the Company by
Consultant, provided that
standard documentation and/or receipts are submitted to the Company by
Consultant at the time reimbursement is requested. At the end of each month
during the Consulting Term, Consultant shall provide the Company with a
statement for services rendered during that month and expenses incurred (along
with supporting documentation) for which Consultant seeks reimbursement, and the
Company shall pay the Retainer Fee, and reimburse the reimbursable expenses,
within five (5) business days following receipt of such statements.
4. Independent Contractor. The Parties acknowledge, understand
and agree that Consultant is an independent contractor and shall not be
considered an employee or agent of the Company or any of its affiliates pursuant
to the terms of this Agreement for any purposes whatsoever and Consultant shall
have no right or authority to assume or create any obligation or liability,
express or implied, on behalf of the Company or any of its affiliates, or to
bind the Company or any of its affiliates in any manner whatsoever, without the
Company's express prior written consent. Consultant shall be responsible for all
income taxes, Social Security and other tax liabilities with respect to the
Retainer Fee paid hereunder.
5. Termination.
a. Notwithstanding anything to the contrary herein, in the
event Consultant intentionally breaches a material provision of this Agreement
(for purposes hereof, the covenants in Sections 6, 7 and 8 shall be deemed to be
material provisions), the Company shall have the right to terminate this
Agreement by giving Consultant written notice thereof (and such termination
shall be effective upon the date of such notice).
b. On or after August 1, 1998, either Party may terminate this
Agreement at any time by giving written notice to the other (and such
termination shall be effective ten (10) business days after the date of such
notice, unless otherwise agreed to by the Parties).
c. The Company's right of termination shall be in addition to
and shall not affect its rights and remedies under Sections 6, 7, 8 and 9
hereof, and such rights and remedies under such Sections shall survive
termination of this Agreement.
d. In the event of termination of this Agreement pursuant to
the terms hereof, Consultant shall have no right to receive any compensation for
any period subsequent to the date of such termination, except for any pro rated
amounts earned prior to such termination, and all rights of Consultant to
receive compensation for any period subsequent to the date of such termination
shall terminate in their entirety effective on and as of the termination date.
6. Non-Competition Agreement. Without the prior consent of the
Company, Consultant shall not, for a period extending from the date hereof and
continuing for so long as Consultant is receiving payments from the Company for
consulting services provided hereunder, directly or indirectly, be employed in
any capacity by, serve as an employee, agent, officer or director of, serve as a
consultant or advisor to, or otherwise participate in the management or
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operation of, any person, firm, corporation or other entity of any kind
(collectively, a "Person") which engages in any facet of the business of
manufacturing and marketing fragrance products, artificial fingernails or
artificial or natural nail care products in the continental United States.
7. Confidentiality. Consultant shall not, at any time, divulge
to any Person (as defined in Section 6 above), other than to employees of the
Company and its affiliates who have a need to know such information in
connection with the performance of their duties on behalf of the Company and
except as required by law, any confidential, proprietary or privileged
information to which Consultant becomes privy during the Consulting Term,
including, without limitation, information relating to the financial condition,
business, operations, or method of business of the Company or its affiliates,
customer and supplier information, independent contractor information, know-how,
trade-secrets, procedures, litigation or other confidential information
regarding the affairs of the Company, or any of its officers, directors,
stockholders, subsidiaries, affiliates, customers or suppliers ("Confidential
Information").
Confidential Information does not include any information that (i) is or becomes
generally available to the public other than as a result of a disclosure by
Consultant or anyone to whom Consultant transmits the Confidential Information
in accordance with this Agreement, or (ii) becomes available to Consultant on a
non-confidential basis from a source other than the Company or its affiliates.
8. Nonsolicitation of Employees. Consultant shall not, for a
period extending from the date hereof and continuing for so long as Consultant
is receiving payments from the Company for consulting services provided
hereunder, directly or indirectly, solicit, interfere with, employ or retain in
any other capacity any employee of the Company or any of its affiliates, nor
permit, encourage or allow any entity in which the Consultant owns, directly or
indirectly, more than a 5% equity or proprietary interest or the right or
option, legally or beneficially, directly or indirectly, to acquire or own any
stock or other proprietary or equity interest, to solicit, interfere with,
employ or retain in any other capacity any employee of the Company or any of its
affiliates.
9. Remedies. Consultant acknowledges and agrees that (a) the
covenants contained in Sections 6, 7 and 8 hereof are reasonable in content and
scope, are entered into by Consultant in partial consideration for the
compensation to be paid to Consultant hereunder and are a necessary and material
inducement to the Company to go forward with the engagement contemplated by this
Agreement, and (b) the services and agreements to be performed hereunder by
Consultant are of a unique, special and extraordinary character, and that a
breach by Consultant of any covenants contained in Sections 6, 7 and 8 above
would result in irreparable damage to the Company and its affiliates which may
be unascertainable. Accordingly, Consultant agrees that, in the event of any
breach or threatened breach of any of the covenants contained in Sections 6, 7
and 8, the Company and its affiliates shall be entitled, in addition to money
damages and reasonable attorneys' fees and the right, in the Company's sole and
absolute discretion, to terminate this Agreement, to seek an injunction or other
appropriate equitable relief to prevent such breach or any continuation thereof
in any court of competent jurisdiction.
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10. Indemnification. The Company shall indemnify and hold
harmless Consultant from and against any claims, judgments, liabilities,
obligations, expenses (including reasonable attorneys' fees) and costs incurred
by Consultant that arise from the performance by Consultant of services for the
Company in accordance with the terms hereof, to the extent that (i) Consultant
acted in good faith and in a manner which Consultant reasonably believed to be
in, or not opposed to, the best interests of the Company, and (ii) with respect
to any criminal proceeding, Consultant had no reasonable cause to believe the
conduct was unlawful.
11. Notices. All notices or other communications in connection
with this Agreement shall be in writing and may be given by personal delivery or
mailed, certified mail, return receipt requested, postage prepaid or by a
nationally recognized overnight courier to the Parties at the addresses set
forth below (or at such other address as one Party may specify in a notice to
the other Party):
If to the Company: Renaissance Cosmetics, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Group Vice President, Corporate
Development and Human Resources
with a copy to: Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxx
If to Consultant: River International, Inc.
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxx
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
13. Attorneys' Fees. The Parties agree that, if any action is
instituted to enforce this Agreement, the Party not prevailing shall pay to the
prevailing Party all costs and expenses, including reasonable attorneys' fees,
incurred by such prevailing party in connection with such action. If both
Parties prevail in part in such action, the court or arbitrator(s) shall
allocate the financial responsibility for such costs and expenses.
14. Entire Agreement; Amendments. This Agreement represents
the entire agreement between the Parties with respect to the matters addressed
herein and supersedes all prior negotiations, representations or agreements
between the Parties, either written or oral, on the subject matter hereof. This
Agreement may not be amended, modified, altered or rescinded except upon a
written instrument designated as an amendment to this Agreement and executed
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by both Parties hereto.
15. Severability. If any provision of this Agreement, or part
thereof, is held invalid, void or voidable as against public policy or
otherwise, the invalidity shall not affect other provisions, or parts thereof,
which may be given effect without the invalid provision or part. If any
provisions of this Agreement shall be held to be excessively broad as to
duration, geographical scope, activity or subject, such provisions shall be
construed by limiting or reducing the same so as to render such provision
enforceable to the extent compatible with applicable law.
16. Waiver. Failure on the part of the Company to exercise any
right or option arising out of a breach of this Agreement shall not be deemed a
waiver of any right or option with respect to subsequent or different breach, or
the continuation of any existing breach.
17. Sole Provider of Consulting Services. Notwithstanding
anything herein to the contrary, RII and Kaung agree that, absent mutual
agreement between Consultant and the Company to the contrary, Kaung shall be the
sole provider of consulting services on behalf of RII and that RII shall not
have the right, without the prior agreement of the Company, to substitute,
designate or appoint any person other than Kaung as the sole provider of
consulting services hereunder on behalf of RII.
18. Counterparts; Telecopied Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which when taken together shall constitute one and the same
agreement. Signatures may be exchanged by telecopy and the originals shall be
exchanged by overnight mail. Each of the Parties agrees that it will be bound by
it telecopied signature and that it accepts the telecopied signature of the
other Party.
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IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the day and date first above written.
RIVER INTERNATIONAL, INC.
By: /s/ Xxxxxx X. X. Kaung
---------------------------
Name: Xxxxxx X.X. Kaung
Title: President
RENAISSANCE COSMETICS, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: GVP
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