EXHIBIT 10(O)
================================================================================
SERVICES AGREEMENT
BY AND BETWEEN
THE COSMETIC CENTER, INC.
AND
REVLON CONSUMER PRODUCTS CORPORATION
DATED AS OF FEBRUARY , 1997
================================================================================
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated as of [FEBRUARY ,]
1997, is by and between The Cosmetic Center, Inc. ("Cosmetic Center") and Revlon
Consumer Products Corporation ("Revlon"), each a Delaware corporation.
WHEREAS, Cosmetic Center is a majority owned subsidiary of Revlon; and
WHEREAS, Cosmetic Center desires to utilize certain services of Revlon and,
in addition, Revlon is willing to purchase certain goods and services on behalf
of Cosmetic Center;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. SERVICES
1.1 CONTINUING SERVICES. Revlon agrees to provide to Cosmetic Center, and
Cosmetic Center agrees to purchase from Revlon, the following services
(individually a "Continuing Service" and collectively the "Continuing Services")
as and to the extent requested by Cosmetic Center (each of the subsections below
being referred to herein as a "Service Group"):
(a) Revlon's senior executive management personnel for overall
executive advice and services;
(b) Revlon's treasury staff for financial advice and services,
including assistance with respect to matters such as financing, raising
capital, and daily cash management and investment services;
(c) Revlon's legal staff for general legal advice and services,
including assistance with respect to claims which may be asserted or become
the subject of litigation, the preparation and review of contracts and
disclosure documents required by federal laws and general consultation with
respect to legal and administrative proceedings and matters;
(d) Revlon's human resources staff for advice and assistance with
personnel matters, including, without limitation, wage and salary
administration, employee relations and administration of pension plans and
other employee benefit plans;
(e) Revlon's controller's staff for accounting, bookkeeping and
auditing advice and services, including, without limitation, assistance in
the preparation and review of financial statements, and assistance in the
preparation and review of disclosure documents required by federal
securities laws;
(f) Revlon's tax staff for general tax advice and services, including,
without limitation, assistance in the preparation of federal, state, local
and foreign tax returns;
(g) Revlon's real estate staff for administration and assistance in
matters relating to real estate, including the administration of real
estate leases;
(h) Revlon's management information staff for administration and
assistance in matters relating to management information and computer
systems;
(i) Revlon's corporate information staff for advice and assistance in
matters relating to public relations and investor relations and in
organizational matters associated with stockholders' meetings and meetings
of the board of directors;
(j) Revlon's risk management staff for advice and assistance with
respect to risk management and insurance matters (including, if
appropriate, arranging for Cosmetic Center's participation in Revlon's
insurance plans and policies); and
(k) the services of certain hourly employees of Revlon or its
subsidiaries for the performance of warehousing and distribution functions
at Cosmetic Center's leased distribution facility in Holmdel, New Jersey.
1.2 THIRD PARTY SERVICES. Commencing on the date hereof, and for the term
of this Agreement and as agreed upon by Cosmetic Center and Revlon, Revlon shall
provide to Cosmetic Center services purchased by Revlon from third party
providers (the "Third Party Services") as and to the extent requested by
Cosmetic Center, including, but not limited to, insurance coverage and the
services of attorneys, accountants and other consultants.
1.3 LIMITATION OF SERVICES. Notwithstanding any other provision of this
Agreement: Revlon need not make available any service agreed to be provided
herein to the extent doing so would (i) unreasonably interfere with the
performance of services for Revlon by an employee of Revlon or otherwise cause
an unreasonable burden to Revlon or (ii) unreasonably interfere with the use of
or access to any equipment, office space or facility by Revlon or otherwise
cause an unreasonable burden to Revlon. In addition, Revlon need not make
available any service agreed to be provided herein to the extent that Revlon
discontinues such service within its organization.
1.4 NO EMPLOYMENT RELATIONSHIP: It is understood and agreed that each of
the Revlon staff members and hourly employees providing a Continuing Service to
Cosmetic Center pursuant to this Agreement shall be employed solely and
exclusively by Revlon. Revlon shall have sole authority over the wages, hours
and working conditions of said Revlon staff members and hourly employees, and
shall exclusively supervise the means and manner of their work. It is further
understood and agreed that in providing Continuing Services hereunder, Revlon
shall be considered an independent contractor of Cosmetic Center, and Cosmetic
Center shall not be a single, joint or any other type of employer of any of the
Revlon staff members or hourly employees. Accordingly, Cosmetic Center shall not
be a party to, and shall not be responsible for any obligations or liabilities
under, any express or implied contract, understanding, policy, practice,
representation, pension or welfare benefit plan or trust or collective
bargaining agreement between or involving Revlon and any of its staff members or
hourly employees or labor organizations who represent Revlon staff members or
hourly employees, except to the extent expressly provided otherwise hereunder
including Sections 2.1 and 2.3 relating to payment for all continuing services
and related amounts. Revlon agrees to be solely responsible for compliance with
all applicable laws and other binding legal commitments with respect to its
staff members and hourly employees and any labor organizations who represent
them, and it indemnifies and holds Cosmetic Center, its officers, directors and
employees from and against any and all losses, liabilities, claims, damages,
costs and expenses (including attorneys' fees and other expenses of litigation)
to which such party may become subject arising out of Revlon's failure to so
comply or out of Revlon's employment of said staff members and hourly employees,
except to the extent expressly provided otherwise herein including Sections 2.1
and 2.3 relating to payment for all continuing services and related amounts.
SECTION 2. COST OF SERVICES
2.1 COST OF CONTINUING SERVICES. For the Continuing Services provided by
Revlon to Cosmetic Center hereunder, Cosmetic Center shall pay to Revlon the
actual fully burdened cost incurred by Revlon in providing such services. The
actual cost for providing such services shall be determined by considering the
relevant factors, including, without limitation, the time spent by persons
providing the services, the hourly cost of each such person, including any
fringe benefits, and the cost of materials, equipment and overhead, if any,
related to providing such services. The cost of providing warehousing and
distribution services shall include payroll costs plus any contributions to the
pension and welfare benefit plans in which the employees providing such services
participate.
2.2 COST OF THIRD PARTY SERVICES. For the Third Party Services provided by
Revlon to Cosmetic Center hereunder, Cosmetic Center shall pay to Revlon that
portion of amounts due to third party providers of the Third Party Services as
is allocable to the services purchased for and provided to, or for the benefit
of, Cosmetic Center.
2.3 EXPENSES. In addition to the amounts to be paid by Cosmetic Center
pursuant to Sections 2.1 and 2.2, Cosmetic Center shall reimburse Revlon for the
amount of all reasonable out-of-pocket expenses incurred by Revlon in providing
any services hereunder and not otherwise charged to Cosmetic Center pursuant to
Paragraph 2.1 or 2.2 and for any serverance costs or expenses associated with
the termination of the hourly employees of Revlon and/or its subsidiaries
referred to in Section 1.1(k) in the event that Cosmetic Center elects to
terminate the warehousing and distribution services provided by such employees
pursuant to Section 7.1.
[SECTION 3. EMPLOYEE BENEFIT PLANS]
[COSMETIC CENTER AGREES TO PAY REVLON ANY AND ALL COSTS ASSOCIATED WITH OR
ATTRIBUTABLE TO THE PARTICIPATION OF EMPLOYEES OF COSMETIC CENTER IN ANY
PENSION, HEALTH, SAVINGS OR EMPLOYEE BENEFIT PLAN OF REVLON.]
SECTION 4. LIMITATION OF LIABILITY
In providing services hereunder, Revlon shall have a duty to act, and cause
its agents to act, in a reasonably prudent manner. Neither Revlon, nor any
officer, director, employee or agent of Revlon shall be liable to Cosmetic
Center for any error of judgment or for any loss incurred by Cosmetic Center in
connection with the matters to which this Agreement relates, except a loss
resulting from the willful misconduct, bad faith or gross negligence on the part
of Revlon.
SECTION 5. INDEMNITY
Cosmetic Center shall indemnify and hold harmless Revlon, its officers,
directors and employees from and against any and all losses, liabilities,
claims, damages, costs and expenses (including attorney's fees and other
expenses of litigation) to which such party may become subject arising out of
the provision hereunder by Revlon or any third party of services to Cosmetic
Center, provided that such indemnity shall not protect any such party against
any liability to which such person would be subject by reason of willful
misconduct, bad faith or gross negligence.
SECTION 6. PAYMENT
Cosmetic Center shall pay Revlon any amount due hereunder, including,
without limitation, any amount billed for services, other assistance, expenses
of outside professional services, [COSTS OF CONTRIBUTION AND ADMINISTRATION WITH
RESPECT TO EMPLOYEE BENEFIT PLANS,] any insurance premiums (including charges
for deductibles, self-insurance retensions, retrospective premium adjustments
and similar self-insurance costs) and other reimbursements, within 10 working
days of the presentation to Cosmetic Center of an invoice therefor.
SECTION 7. TERM
7.1 TERM. (a) This Agreement shall be continuously in effect until
terminated in whole or in part as to any specific Service Group or Groups on 90
days prior written notice by Cosmetic Center and on 180 days' prior written
notice by Revlon of its intention to terminate this Agreement or such specific
Service Group or Groups. Notwithstanding anything herein to the contrary, if
there is a change of control (as defined below) of Cosmetic Center at any time
prior to the end of the Term, Revlon may terminate this Agreement upon not less
than 30 days' prior written notice to Cosmetic Center. A "change in control" of
Cosmetic Center 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 Cosmetic Center or (B) all or
substantially all of Cosmetic Center's assets are sold to any person other than
an affiliate. For purposes of this Section 7, 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.
(b) Notwithstanding anything to the contrary, Revlon may terminate this
Agreement (A) immediately if Buyer is liquidated or dissolved or adopts a plan
of liquidation or (B) 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 (C) 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 8. MISCELLANEOUS
8.1 NOTICE. 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, as follows:
To Cosmetic Center: The Cosmetics Center, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
To Revlon: Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President and Secretary
8.2 GOVERNING LAW. The validity, interpretation, enforceability and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the law 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.
8.3 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement among
the parties and supersedes all prior negotiations, undertakings, representations
and agreements, if any, of the parties hereto with respect to the matters
contained herein.
8.4 AMENDMENTS AND WAIVERS. This Agreement may not be amended except upon
the written consent of the parties hereto. Either party may waive, by written
instrument, compliance by the other party with any term or provision of this
Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy or power hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy or power provided herein or by law or
in equity. The waiver by any party of the time for performance of any act or
condition hereunder does not constitute a waiver of the act or condition itself.
8.5 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.
8.6 SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder of
this Agreement and such provisions as applied to other persons, places and
circumstances, shall remain in full force and effect.
8.7 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COSMETIC CENTER, INC.
By: ___________________________________
Title: ________________________________
REVLON CONSUMER PRODUCTS CORPORATION
By: ___________________________________
Title: ________________________________
