EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement"), dated as of
April 1, 1997, is entered into between French Fragrances, Inc., a
Florida corporation (the "Company"), and Xxxxxx Xxxxxx (the
"Executive").
RECITAL
The Executive has been employed in the capacity of President
of the Company since July 1992. The Company desires to continue
its employment of the Executive in the capacity of Chief
Executive Officer in accordance with the terms and subject to the
conditions set forth in this Agreement, and the Executive desires
to accept such employment.
AGREEMENT
In consideration of the foregoing and of the mutual promises
set forth in this Agreement, the Company and the Executive agree
as follows:
1. Employment. The Company hereby employs the Executive as
an officer of the Company, initially with the title of Chief
Executive Officer, and the Executive hereby accepts such
employment, upon the terms and subject to the conditions set
forth in this Agreement.
2. Term. The term of this Agreement shall be three years,
commencing on the date hereof and ending on the third anniversary
of such date, subject to earlier termination pursuant to the
provisions of Section 9. This Agreement shall be renewable for
successive one year periods unless earlier terminated as
provided in this Agreement or unless either party provides the
other with a written notice of non-renewal at least 90 days prior
to the applicable term.
3. Duties. During the term of this Agreement, the Executive
shall serve in such capacities and perform such duties as the
Board of the Company (the "Board") may, from time to time,
designate. Initially, the Executive shall serve as the Chief
Executive Officer of the Company and shall have management
control of the Company subject to the supervision of the Board.
The Executive shall devote his full business time and energies to
the business and affairs of the Company and shall use his best
efforts, skills and abilities to promote the interests of the
Company and to diligently and competently perform the duties of
his position; provided that the Executive shall be entitled to
devote a reasonable portion of his time to civic, religious and
personal business matters not competitive with that of the
Company.
4. Compensation and Benefits.
(a) Base Compensation. During the term of this Agreement,
the Company shall pay to the Executive, and the Executive shall
accept from the Company, as compensation for the performance of
services under this Agreement and the Executive's observance and
performance of all of the provisions hereof, an annual salary at
such rate as may be fixed from time to time by the Board or the
Compensation Committee of the Board (the "Base Compensation")
based on the Executive's performance and such other factors as
the Board shall consider. The Executive's Base Compensation shall
be payable in accordance with the normal payroll practices of the
Company and shall be subject to withholding for applicable taxes
and other amounts.
(b) Bonuses and Incentive Compensation; Bonus Pool. The
Executive shall also be eligible to receive such other
compensation as the Board or the Compensation Committee shall
determine, including, without limitation, bonuses and stock
option grants. During the term of this Agreement, the Company
shall continue to maintain an annual bonus pool for the benefit
of the Executive, other members of senior management and key
employees of the Company. The bonus pool shall be equal to 6% of
the Pre-Tax Profit of the Company. For purposes of this Section
4(b), "Pre-Tax Profit" shall mean the aggregate net profit, less
bonus payments to other employees and before provision for income
taxes, attributable to the Company. The allocation and payment
of the amounts available in the bonus pool shall be determined by
the Compensation Committee.
(c) Other Benefits. During the term of this Agreement, the
Executive shall be entitled to participate in or benefit from, in
accordance with the eligibility and other provisions thereof,
such medical, insurance, pension, retirement, life insurance,
profit sharing and other fringe benefit plans or policies as the
Company may make available to, or have in effect for, its key
executive personnel from time to time. The Company retains the
rights to terminate or alter any such plans or policies from time
to time. The Executive shall also be entitled to holidays, paid
vacation time, sick leave and other similar benefits in
accordance with policies of the Company from time to time in
effect for key executive personnel.
5. Reimbursement of Business Expenses. During the term of
this Agreement, upon submission of appropriate supporting
documentation and in accordance with such guidelines as may be
established from time to time by the Company, the Executive shall
be reimbursed by the Company for all reasonable business and
travel expenses incurred by the Executive on behalf of the
Company in connection with the performance of services under this
Agreement.
6. Confidentiality. The Executive acknowledges that the
Executive has had and will continue to have knowledge of, and
access to, all proprietary and confidential information of the
Company, including, without limitation, the Company's methods of
operation and other trade secrets, financial and marketing
information, and the identity of customers and suppliers
(collectively, the "Confidential Information"), and that such
information constitutes valuable, special and unique assets of
the Company. Accordingly, during and after his employment under
this Agreement, Executive shall keep all such information in the
strictest confidence and shall not, to the detriment of the
Company, knowingly disclose or reveal to any unauthorized person
any confidential or proprietary information relating to the
Company, including without limitation, any operational methods,
marketing strategies, product development techniques or plans,
and customer or supplier lists, so long as the information has
not been publicly disclosed other than as a result of a violation
of this covenant. The Executive acknowledges that the Company
would not enter into this Agreement without the assurance that
all Confidential Information will be used for the exclusive
benefit of the Company. Upon the termination of Executive's
employment with the Company, the Executive shall promptly deliver
to the Company all notes, reports and all other materials
relating to the Company's business, including without limitation,
any materials incorporating Confidential Information, which are
in the Executive's possession or control.
7. Non-competition. The Executive agrees not utilize his
special knowledge of the business of the Company and his
relationships with customers, suppliers and others to compete
with the Company. During the term of this Agreement and for a
period of five years after the expiration or termination of this
Agreement, the Executive shall not engage or have an interest,
anywhere in the State of Florida or any other geographic area
where the Company does business or in which its products are
marketed, alone or in association with others, as principal,
officer, agent, employee, director, partner or stockholder, or
through the investment of capital, lending of money or property,
rendering of services or otherwise, in any business competitive
with or similar to that engaged in by the Company, including
without limitation, the distribution or sale of perfume products.
During the same period, the Executive shall not, and shall not
permit any of his employees, agents or others under his control
to, directly or indirectly, on behalf of himself or any other
Person, (i) call upon, accept business from, or solicit the
business of any person who is, or who had been at any time during
the preceding year, a customer of the Company or any successor to
the business of the Company, or otherwise divert or attempt to
divert any business from the Company or any such successor, (ii)
recruit or otherwise solicit or induce any person who is, or had
been at any time during the preceding year, a supplier of the
Company or any successor to the business of the Company to
terminate its relationship with the Company or any successor, or
(iii) recruit or otherwise solicit or induce any person who is an
employee of, or otherwise engaged by, the Company or any
successor to the business of the Company to terminate his or her
employment or other relationship with the Company or such
successor.
8. Remedies. The restrictions set forth in Sections 6 and
7 are considered by the parties to be reasonable for the purposes
of protecting the value of the business and goodwill of the
Company. The Executive acknowledges that the Company would be
irreparably harmed and that monetary damages would not provide an
adequate remedy in the event of a breach of the provisions of
Sections 6 or 7. Accordingly, the Executive agrees that the
Company shall be entitled to injunctive and other equitable
relief to secure the enforcement of these provisions, in addition
to any other remedy which may be available to the Company, and
that the Company shall be entitled to receive reimbursement from
the Executive for reasonable attorneys' fees and expenses
incurred by the Company in enforcing these provisions. It is the
desire and intent of the parties that the provisions of Sections
6, 7 and 8 be enforced to the fullest extent permissible under
the laws and public policies of each jurisdiction in which
enforcement is sought. If any provisions of Sections 6, 7 or 8 is
declared by a court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too
broad a range of activities or in too large a geographic area,
however, such provision shall be interpreted to extend only over
the maximum period of time, range of activities or geographic
area as to which it may be enforceable. If any provisions of
Sections 6, 7, or 8 other than those described in the preceding
sentence are adjudicated to be invalid or unenforceable, the
invalid or unenforceable provisions shall be deemed amended in
such manner as to render them enforceable and to effectuate as
nearly as possible the original intentions and agreement of the
parties. The provisions of Sections 6, 7 and 8 shall survive
termination of the Agreement.
9. Termination. This Agreement may be terminated prior to
the expiration of the term set forth in Section 2 upon the
occurrence of any of the events set forth in, and subject to the
terms of, this Section 10.
(a) Death. This Agreement will terminate immediately and
automatically upon the death of the Executive.
(b) Cause. This Agreement may be terminated at the
Company's option, immediately upon notice to the Executive, upon:
(i) breach by the Executive of any material provision of this
Agreement; (ii) gross negligence or willful misconduct of the
Executive in connection with the performance of his duties under
this Agreement, or Executive's willful refusal to perform any of
his duties or responsibilities required pursuant to this
Agreement; or (iii) fraud, conviction or a felony or crime
involving moral turpitude, or embezzlement by the Executive.
(c) Voluntary Termination by the Executive. The Executive
may terminate this Agreement at any time upon giving 90 days
prior written notice.
(d) Effect of Termination. In the event of any termination
under this Section 10, the Company shall have no further
obligation under this Agreement to make any payments to, or
bestow any benefits on, the Executive from and after the date of
the termination, other than payments or benefits accrued and due
and payable to him prior to the date of the termination.
10. Notices. Any notice, request, demand, consent,
approval or other communication provided or permitted hereunder
shall be in writing and may be given by personal delivery,
telecopy or may be sent by registered mail, postage prepaid,
addressed to the party for which it is intended at its address as
follows:
If to the Executive: Xxxxxx Xxxxxx
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
If to the Company: French Fragrances, Inc.
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Vice President and
General Counsel
Fax: (000) 000-0000
A party may change its address for purposes of receipt of any
such communication by giving ten days prior notice of such change
in the manner above prescribed. Any notice sent by registered
mail as aforesaid shall be deemed to have been given on the fifth
business day next following the mailing thereof. Any notice sent
by telecopy or personally delivered shall be deemed to have been
received on the date of delivery.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida,
without regard to principles of conflicts of laws.
12. Binding Effect; Assignment. This Agreement and all
documents and agreements delivered pursuant hereto shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither party
may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party; provided,
however, that upon the sale of all or substantially all of the
assets, business and goodwill of the Company to another company,
or upon the merger or consolidation of the Company with another
company, this Agreement shall inure to the benefit of, and be
binding upon, both Executive and the company purchasing such
assets, business and goodwill, or surviving such merger or
consolidation, as the case may be, in the same manner and to the
same extent as though such other company were the Company.
Subject to the foregoing, this Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their
legal representatives, heirs, successors and assigns.
13. Entire Agreement; Modification. This Agreement
represents the entire agreement between the parties with respect
to the subject matter hereof and shall supersede and cancel all
prior oral or written agreements including that certain
Employment Agreement dated as of July 2, 1992, as amended,
between the Executive and a privately-held Florida corporation
named French Fragrances, Inc. which merged with and into the
Company. This Agreement may be modified or amended only by a
written instrument properly executed by the parties hereto.
14. Severability; Waiver. In the event that any one or
more of the provisions of this Agreement shall be held to be
invalid, void or unenforceable for any reason, the remaining
provisions of this Agreement shall remain in full force and
effect, and the invalid, void or unenforceable provision shall
be interpreted as closely as possible to the manner in which it
was written. Failure of a party to enforce one or more of the
provisions of this Agreement or to require at any time
performance of any of the obligations hereof shall not be
construed to be a waiver of such provisions by such party nor to
in any way affect the validity of this Agreement or such party's
right thereafter to enforce any provision of this Agreement. An
effective waiver must be in writing and executed by the party to
be bound thereby.
IN WITNESS WHEREOF, each of the parties hereto have duly
executed this Agreement as of the date set forth above.
FRENCH FRAGRANCES, INC.
/s/ Xxxxx X. Marina
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Xxxxx X. Xxxxxx
Vice President
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
