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Exhibit 10.64
RENAISSANCE COSMETICS, INC.
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
June 1, 1995
Mr. Aldran X. XxXxxx
00000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Dear Al:
This letter will confirm our agreement with respect to your new
consulting relationship with Renaissance Cosmetics, Inc., a Delaware corporation
("Renaissance"), ("New Consulting Agreement") which, effective June 1, 1995,
will replace and supersede your previous consulting agreement dated January 11,
1995 ("Old Consulting Agreement") and your employment agreement with
Renaissance and its subsidiary, Cosmar Corporation ("Cosmar" and, together with
Renaissance, the "Companies"), under the employment agreement between you and
the Companies dated August 18, 1994 (the "Employment Agreement").
In that connection, we agree that:
1. Change of Relationship. Except as provided in sections
5 and 6 below, effective on June 1, 1995 the Old Consulting Agreement and the
Employment Agreement will terminate.
2. Consulting Services.
(a) During the period from June 1, 1995 through
December 31, 1996 (the "Consulting Period"), you shall act as a consultant to
the Companies.
(b) You will report directly to Xx. Xxxxxx X.
Xxxxxx, Chairman, President and Chief Executive Officer of the Companies and
Xxxx Xxxxxx and will perform your services to Cosmar in the following areas
only, as directed by Xx. Xxxxxx and the General Manager of Cosmar, and, except
as may be required or contemplated in connection with the activities specified
in clause (iii) of this section 2(b) and in section 2(c) below, solely with
respect to the "Business" as defined in the Employment Agreement (the
"Business"); (i) the mold capture digitalization project; (ii) the development
and manufacture of gel nail tips; and (iii) such other areas, including new
product plans and strategic plans, if any, as may be jointly determined by Xx.
Xxxxxx and the Cosmar General Manager, on the one hand, and by you. The
foregoing list of areas comprise aspects of the Business in which you have or
have had varying degrees of involvement and expertise, and shall not be taken
as any representation or covenant by you as to
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any particular level of expertise or assurance as to the accomplishment of any
particular goal or task.
(c) Although your services will be performed
primarily for Cosmar, you will also be available at the request of Xx. Xxxxxx to
consult with Xx. Xxxxxx with respect to new product launches, packaging and
other areas pertaining to the fragrances business of Renaissance, but in no
event shall such consultation result in the inclusion of such activities and/or
the specific subject matter thereof as "Business" for any purpose including
without limitation for the purpose of subjecting such activities and/or such
specific subject matter to the confidentiality and non-competition provisions of
section 3 of the Employment Agreement. However, as to fragrances, you will be
available to consult as aforesaid unless you have previously commenced active
involvement on your own behalf in any aspect of the fragrance businesses and
have previously notified Xx. Xxxxxx or either of the Companies in writing, and
you are free to reject any consultation request that in your sole discretion may
create or cause any competitive, conflict-of-interest or other concerns relating
to such previously commenced active involvements. If you have not previously
commenced active involvement on your own behalf and given the notice pursuant to
the preceding sentence, then from the time Xx. Xxxxxx may first request your
consultation as to any specific product or product line of fragrances until the
expiration or earlier termination of this agreement you will refrain from any
active involvement in or with that specific fragrance product and any other
competitive product or product line of fragrances on your own behalf or on
behalf of any third party.
(d) You shall provide your consulting services
pursuant to this section 2 on an as needed basis, as determined by the
Companies in their sole discretion. Arrangements for the rendition of such
consulting services shall be made upon reasonable advance notice. Requests for
consulting services will not exceed one day in each two week period, on a
non-cumulative basis.
(e) If a majority of the Board of Directors of
either of the Companies vote to terminate your consultancy "for cause" (as
defined below), the Companies shall have the right to immediately terminate
your consultancy hereunder and it shall be so terminated effective on the date
specified by such Directors, and in such case you shall receive no further
monies under section 3 hereof or otherwise, except such as may have been accrued
for you. For purposes of this agreement, termination shall not be deemed "for
cause" unless:
(i) such termination shall have been the
result of fraud or embezzlement on the part of you; or
(ii) there has occurred a breach of section 5
of this agreement which has had, or in the reasonable
opinion of the Board of Directors of either of the
Companies may have, a material adverse effect upon the
business or operations of either of the Companies; or
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(iii) you have been convicted of or have pleaded guilty or no
contest to any felony or any crime involving moral turpitude on your
part; or
(iv) you have failed to discharge your consulting duties,
responsibilities or obligations under this agreement; provided,
however, the Directors shall not terminate your consultancy pursuant to
this subparagraph unless the Board of Directors of either of the
Companies shall have given you written notice describing, in as
specific detail as is reasonably possible, the failure by you to
discharge your duties, responsibilities or obligations and unless,
after a reasonable period of time (but not less than 30 days unless
circumstances clearly require otherwise) following that notice, you
have not cured such failure.
(f) In the event that you voluntarily terminate your consultancy
before the expiration of the term of this agreement without the written consent
of either of the Companies or Xx. Xxxxxx, or as otherwise permitted under this
agreement, you shall be entitled to receive no further monies or benefits under
section 3 hereof or otherwise, except such as may have been accrued for you,
and the Companies (and any affiliate or assignee thereof or successor thereto)
shall not assert any claim or bring any action against you, or against the
Selling Entities (as defined in the Employment Agreement) and their (including
your) affiliates, successors, assigns, representatives and agents, on account
of such voluntary termination by you.
(g) If the Companies terminate your consultancy without cause, you
shall be entitled to, and the Companies shall be obligated to pay to you, your
fee under section 3 through the end of the Consulting Period.
(h) The Companies shall be entitled to commence any action and seek
any appropriate damages and other remedies against you for breach or alleged
breach as described in clauses (i), (ii) or (iii) of section 2(e), but the
Companies shall not seek any remedy against you for breach of clause (iv) of
section 2(e) other than the remedy of termination of this agreement. The
Companies shall jointly and severally indemnify you, and hold you harmless,
from and against any and all damages, costs and expenses in connection with any
and all claims of third parties arising from or relating to the performance
by you of your duties in compliance with the terms hereunder, the terms of the
Old Consulting Agreement or the terms of the Employment Agreement, other than
claims arising from your willful misconduct; provided, however, that you
provide the Companies with prompt written notice of any and all such third
party claims and that the Companies shall have the right to control the defense
of any and all such third party claims; and provided further, however, that if
the Companies shall fail to exercise their right to defend any
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claim, then the costs and expenses referred to above in this sentence shall
include, but shall not be limited to, the reasonable fees and expenses of your
counsel.
3. Consulting Fee. In consideration for the services to be
rendered pursuant to section 2 and your other covenants herein, the Companies
will jointly and severally pay to you during the Consulting Period, an
aggregate annual fee of $250,000 payable in equal monthly installments, this
obligation to be divided between the Companies as the Companies shall
determine. As an independent contractor, you agree to pay, when due, any and
all employment and income taxes applicable to the consulting fees you receive
hereunder.
4. Benefits.
(a) During the Consulting Period:
(i) you will be entitled to the use of the office which
we have leased for you and the use in connection with your
consulting services of such supplies, telephones and other
office equipment and services reasonably determined by the
Companies;
(ii) upon presentation of appropriate documentation,
the Companies will reimburse you, in accordance with their
normal practices, for the reasonable business expenses incurred
by you in the performance of your services hereunder, provided
the nature and extent of such disbursements are approved by Xx.
Xxxxxx or the General Manager in advance;
(iii) you will be entitled to continue in force your
current group medical and other insurance, and shall be entitled
to participate in any successor group medical or other insurance
made available to the employees of Cosmar, but shall, as an
independent contractor, reimburse the Companies for their cost
of providing same;
(iv) you will not be entitled to the use of any
credit card or automobile;
(v) you will not be entitled to the services of an
assistant or to a development budget, and will have no
responsibility for any product development.
5. Confidentiality: Non-Solicitation and Non-Competition.
Anything to the contrary notwithstanding, except as contemplated in the
following proviso, the confidentiality,
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non-solicitation and non-competition provisions of section 3 of the Employment
Agreement shall remain in full force and effect; provided, however, that
references to "termination of employment" (or words of similar meaning) in the
Employment Agreement shall for all purposes of this agreement be deemed to be
references to the termination of your consulting relationship with the
Companies. The Companies acknowledge that you are free to engage in, and are
unrestricted as to, all segments of the cosmetics industry other than the
Business and, as specifically provided in paragraph 2(c), fragrances. The
Companies accordingly acknowledge that, except as provided herein, your
services hereunder are being furnished to the Companies on a non-exclusive
basis as to those other segments, and that you presently intend to be actively
engaged in other business and investment activities, and that such other
activities will likely include activities in one or more aspects of the
cosmetics industry, subject to the restrictions set forth in section 2(c) and
this section 5.
6. Termination of Option: Repurchase Rights.
(a) The option granted to you pursuant to section 4(g) on
page 7 of the Employment Agreement to purchase 10,204 shares (the "Option
Shares") of Renaissance common stock, at a purchase price of $0.10 per share,
is no longer in effect, and has ceased to be exercisable.
7. Amendment and Modification. This agreement may not be amended,
modified or changed except in a writing signed by the party against whom such
amendment, modification or the like is sought to be enforced.
8. Waiver of Compliance: Consents. Except as otherwise provided
in this agreement, any failure of any of the parties to comply with any
obligation, covenant, agreement or condition herein may be waived by the party
entitled to the benefits thereof only by written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this agreement requires or permits consent by or on behalf of
a party, such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this section 8.
9. Notices. All notices and other communications hereunder shall
be given by personal delivery or by registered or certified mail (return
receipt requested), postage prepaid, to the parties at the following addresses
(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):
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1. If to the Companies, to:
Xx. Xxxxxx X. Xxxxxx
President and Chief Executive Officer
Renaissance Cosmetics, Inc.
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
2. If to you, to:
Aldran X. XxXxxx
00000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
All such notices and other communications shall be deemed given or
delivered when received, or five days after mailing, whichever occurs first.
10. Assignment. Neither this agreement nor any of your rights,
powers, duties or obligations hereunder may be assigned by you. This agreement
shall be binding upon and inure to the benefit of you and your heirs and legal
representatives and the Companies and their successors and assigns. Successors
of the Companies shall include, without limitation, any person acquiring,
directly or indirectly, all or substantially all of the assets of the
Companies, whether by merger, consolidation, purchase, lease or otherwise, and
such successor shall thereafter be deemed the "Companies" for the purposes
hereof.
11. Governing Law. This agreement shall be governed by the laws of
the state of California applicable to agreements made and to be performed
entirely in California, and the
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federal or state courts of Los Angeles shall have exclusive jurisdiction over
all disputes arising hereunder and the parties consent to personal
jurisdiction thereunder.
12. Entire Agreement. This agreement embodies the entire agreement
and understanding of the parties hereto as to your consulting services and the
provisions relating thereto as such matters are set forth herein. Except as
expressly provided herein, this agreement supersedes all prior agreements and
understandings between the parties with respect to such matters.
If the foregoing correctly reflects our understanding, please so
indicate by signing in the space provided.
COSMAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
RENAISSANCE COSMETICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
/s/ Aldran X. XxXxxx
--------------------------------
Aldran X. XxXxxx
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