EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into as of this 30th day of April,
1998 by and among CDRJ Investments (Lux) SA, a Luxembourg company ("Parent"),
its indirect wholly owned subsidiary Jafra Cosmetics International, Inc., a
Delaware corporation ("Employer"), and Xxxxxx X. Xxxxx ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to and subject to the terms of the Acquisition
Agreement, dated as January 26, 1997, by and among Parent, CDRJ Holding (LUX),
SA, a Luxembourg societe anonyme and a wholly owned subsidiary of Parent, and
Xxx Xxxxxxxx Xxxxxxx (the "Acquisition Agreement"), Parent and certain of its
Subsidiaries (as defined below) will acquire the Daybreak Business (as defined
in the Acquisition Agreement) (the "Acquisition");
WHEREAS, subject to the consummation of the Acquisition, Employer
desires to employ Executive as its Chairman and Chief Executive Officer on the
terms and conditions set forth herein;
WHEREAS, Executive desires to accept such employment on the terms and
conditions set forth herein;
WHEREAS, each of Parent, Employer and Executive agrees that Executive
will have a prominent role in the management of the business, and the
development of the goodwill, of Parent, Employer and their respective Affiliates
(as defined below) and will establish and develop relations and contacts with
the principal customers and suppliers of Parent, Employer and their respective
Affiliates in the United States, Mexico, Latin America, Europe and the rest of
the world, all of which constitute valuable goodwill of, and could be used by
Executive to compete unfairly with, Parent, Employer and their respective
Affiliates;
WHEREAS, (i) in the course of his employment with Employer, Executive
will obtain confidential and proprietary information and trade secrets
concerning the business and operations of Parent, Employer and their respective
Affiliates in the United States, Mexico, Latin America, Europe and the rest of
the world that could be used to compete unfairly with Parent, Employer and their
respective Affiliates; (ii) the covenants and restrictions contained in Sections
8 through 13, inclusive, are intended to protect the legitimate interests of
Parent, Employer and their respective Affiliates in their respective goodwill,
trade secrets and other confidential and proprietary information; and (iii)
Executive desires to be bound by such covenants and restrictions;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein and for other good and valuable
consideration, Employer, Parent and Executive hereby agree as follows:
1. Agreement to Employ; No Conflicts. Upon the terms and subject to the
conditions of this Agreement, Employer hereby employs Executive, and Executive
hereby accepts employment by Employer. Executive represents that he is entering
into this Agreement voluntarily and that his employment hereunder and compliance
with the terms and conditions hereof will not conflict with or result in the
breach by him of any agreement to which he is a party or by which he may be
bound.
2. Term; Position and Responsibilities.
(a) Term of Employment. Unless Executive's employment shall sooner
terminate pursuant to Section 7, Employer shall employ Executive for a term
commencing on the date of the consummation of the Acquisition (the "Commencement
Date") and ending on the third anniversary of the Commencement Date; provided,
however, that on each day following the first anniversary of the Commencement
Date the period of Executive's employment pursuant to this Agreement shall be
automatically extended, upon the same terms and conditions, for an additional
day unless Employer or Executive gives 60 days prior written notice (a
"Non-Extension Notice") to the other of its or his intention not to extend such
period of Executive's employment hereunder; provided, further, that delivery of
a Non-Extension Notice by Employer or Executive to the other shall not
constitute a termination of Executive's employment by the Person delivering such
Non-Extension Notice unless such notice specifically provides for such
termination of employment in the manner described in Section 7 below and the
specific date thereof. The period commencing on the Commencement Date and ending
on the earlier of (i) the effective date of any termination of Executive's
employment pursuant to Section 7 and (ii) the later of (x) the third anniversary
of the Commencement Date and (y) the second anniversary of the 60th day
following receipt by Employer or Executive, as the case may be, of a
Non-Extension Notice delivered pursuant to this Section 2(a) shall be referred
to herein as the "Employment Period".
(b) Position and Responsibilities. During the Employment Period,
Executive shall serve as Chairman and Chief Executive Officer of Employer and
have such duties and responsibilities as are customarily assigned to individuals
serving in such positions and such other duties consistent with Executive's
titles and positions as the Board of Directors of Employer (the "Board")
specifies from time to time. Executive shall devote all of his skill, knowledge
and working time to the conscientious performance of the duties and
responsibilities of such positions, except for (i) vacation time as set forth in
Section 6(c) and absence for sickness or similar disability and (ii) to the
extent that it does not interfere with the performance of Executive's duties
hereunder and is in compliance with Executive's covenants and obligations under
Sections 8 through 13, inclusive, (A) such reasonable time as may be devoted to
service on boards of directors of
2
other corporations and entities and the fulfillment of civic responsibilities
and (B) such reasonable time as may be necessary from time to time for personal
financial matters. Parent and Employer will each use its reasonable best efforts
to cause Executive to be nominated and elected to serve as a member of its Board
of Directors during the Employment Period.
3. Base Salary. As compensation for the services to be performed by
Executive during the Employment Period, Employer shall pay Executive a base
salary at an annualized rate of $600,000, payable in installments on Employer's
regular payroll dates, and, in the event that Executive's employment hereunder
terminates by reason of his death, for one month after such termination. The
Board shall review Executive's base salary annually during the period of his
employment hereunder and, in its sole discretion, may increase (but may not
decrease) such base salary from time to time based upon the performance of
Executive, the financial condition of Employer, prevailing industry salary
levels and such other factors as the Board shall consider relevant; provided
that Executive's base salary shall be automatically increased on each
anniversary of the Commencement Date during the Employment Period by an amount
equal to the average increase in the consumer price index during the immediately
preceding twelve month period, as reported from time to time in the Wall Street
Journal. (The annual base salary payable to Executive under this Section 3, as
the same may be increased from time to time, shall hereinafter be referred to as
the "Base Salary".)
4. Incentive Compensation Arrangements.
(a) Annual Incentive Compensation. Employer shall establish an annual
bonus plan for its executive officers (the "Bonus Plan"). During the Employment
Period, Executive shall be entitled to participate in the Bonus Plan in
accordance with the generally applicable terms thereof as in effect from time to
time. The Bonus Plan shall provide that, for each fiscal year of Employer ending
during the Employment Period (each such year, a "Bonus Year"), (i) if Parent and
its Subsidiaries (collectively, the "Company") achieve 100% of the EBITDA target
established by the Board for such Bonus Year (the "EBITDA Target"), Executive
shall be entitled to an annual incentive bonus for such Bonus Year equal to 60%
of his Base Salary, (ii) if the Company achieves 85% of the EBITDA Target for
such Bonus Year, Executive shall be entitled to an annual incentive bonus for
such Bonus Year equal to 36% of his Base Salary, (iii) if the Company achieves
more than 85% of the EBITDA Target for such Bonus Year but less than 100% of
such EBITDA Target, Executive shall be entitled to an annual incentive bonus for
such Bonus Year equal to the sum of (x) 36% of his Base Salary and (y) 1.6% of
his Base Salary for each 1% that the performance of the Company for such Bonus
Year exceeds 85% of such EBITDA Target, (iv) if the Company achieves more than
100% of the EBITDA Target for such Bonus Year, Executive shall be entitled to an
annual incentive bonus for such Bonus Year equal to the sum of (x) 60% of his
Base Salary and (y) $1,000 for each $10,000 of EBITDA achieved by the Company in
excess
3
of 100% of the EBITDA Target for such Bonus Year and an additional $250 for each
$10,000 of EBITDA achieved by the Company in excess of 125% of the EBITDA Target
for such Bonus Year (if any); provided that the EBITDA achieved by the Company
for purposes of the calculation under clause (y) shall be determined after
deduction for the amount payable to Executive pursuant to such clause (y), and
(v) if the EBITDA achieved by the Company for a Bonus Year is less than 85% of
the EBITDA Target for such Bonus Year, Executive shall not be entitled to any
annual incentive bonus for such Bonus Year. With respect to the first Bonus
Year, Executive shall be entitled to a minimum guaranteed annual incentive bonus
under the Bonus Plan equal to 60% of his annualized Base Salary for such Bonus
Year. The annual incentive bonus payable to Executive under the Bonus Plan shall
be paid in cash and shall be paid no later than 30 days following receipt by the
Board of the audited consolidated financial statements of the Company for the
applicable Bonus Year.
(b) Opportunity to Purchase Shares. On or as soon as reasonably
practicable following the Commencement Date, Executive will be given the
opportunity to purchase up to 7,733.33 Class A voting shares, par value $2.00
per share, of Parent (the "Shares"), for a per share purchase price equal to
$100 (the "Purchase Price"), but in no event will Parent be required to offer to
sell or to sell any Shares to Executive at any time at which making such an
offer or selling any such Shares would violate any applicable securities law.
The terms and conditions of Executive's purchase of any Shares, including the
restrictions on transfer of the Shares, the right of first refusal of Parent
with respect to such Shares, the right of Parent to repurchase all or a portion
of such Shares from Executive following any termination of Executive's
employment and the applicable repurchase price and the respective tag along and
drag along rights of Executive and Parent, shall be set forth in a separate
Management Stock Subscription Agreement, substantially in the form attached
hereto as Exhibit A, to be entered into by and between Parent and Executive.
Employer will use its reasonable best efforts to make third party financing,
guaranteed by Employer, available on customary terms to Executive for up to 75%
of the purchase price of the Shares purchased by Executive hereunder. Subject to
agreement of the lending bank and except as provided otherwise in connection
with an event of default (as defined in the applicable financing documents), the
principal amount financed shall become payable on the fifth anniversary of the
date of the origination of the loan and may be prepaid without penalty.
(c) Options. On or as soon as reasonably practicable following the
Commencement Date, Executive shall be granted non-qualified stock options (the
"Options") to purchase two shares of the Class A voting shares of Parent for
each Share purchased by Executive in accordance with Section 4(b) above, at an
option exercise price per share equal to the Purchase Price. Subject in each
case to Executive's continued employment with Employer until the applicable
vesting date, one-half of the Options will become vested and, subject to
compliance with applicable securities laws, exercisable in three equal annual
installments on each of the first three anniversaries of the date of grant
4
and the remaining one-half of the Options (the "Performance Options") will
become vested and, subject to compliance with applicable securities laws,
exercisable either (i) if, during the performance period specified in the
Management Stock Option Agreement referred to below, the Company achieves the
performance objectives established by the Board on the basis of the management
case attached hereto as Exhibit B and specified in such Management Stock Option
Agreement or (ii) in the case of any Performance Options that do not become
vested under the foregoing clause (i), nine years from the date of grant. The
terms and conditions of the Options, including those described in this Section
4(c), and the right of Parent to purchase vested Options from Executive under
certain circumstances, will be set forth in a separate Management Stock Option
Agreement, substantially in the form attached hereto as Exhibit C, to be entered
into by and between Executive and Parent at the time that such Options are
granted.
(d) At the request of Executive, Employer shall lend to Executive from
time to time an amount sufficient to enable Executive to pay any interest on any
loan obtained by Executive to purchase the Shares and guaranteed by Employer
that is due prior to Employer's payment to Executive of the annual incentive
bonus provided for in Section 4(a) for the first Bonus Year. Any such loan shall
(i) be full recourse to Executive, (ii) shall be evidenced by a promissory note
in form reasonably satisfactory to Employer, (iii) shall bear interest at the
"applicable federal rate" (within the meaning of Section 1274 of the Internal
Revenue Code of 1986, as amended) and (iv) shall be due in full (including any
accrued interest thereon) at the time Employer pays to Executive the annual
incentive bonus provided for in Section 4(a) for the first Bonus Year, and
Employer shall be entitled to apply any such annual incentive bonus to repayment
of principal and interest on any such loans.
5 . Employee Benefits. During the Employment Period, Executive shall be
entitled to participate in the profit sharing, pension, retirement, deferred
compensation, savings, life, medical, dental, disability and other welfare
benefit plans maintained by Employer for its senior executives in accordance
with the terms thereof, as the same may be amended and in effect from time to
time. The benefits referred to in this Section 5 shall be provided to Executive
on a basis that is commensurate with Executive's position and duties with
Employer hereunder.
6. Perquisites and Expenses.
(a) General. During the Employment Period, Executive shall be entitled
to participate in all perquisite programs maintained by Employer for its senior
executives, on a basis that is commensurate with Executive's position and duties
with Employer hereunder, in accordance with the terms thereof, as the same may
be amended and in effect from time to time.
5
(b) Business Travel, Lodging, etc. Employer shall reimburse Executive
for reasonable travel, lodging, meal and other reasonable expenses incurred by
him in connection with his performance of services hereunder upon submission of
evidence, satisfactory to Employer, of the incurrence and purpose of each such
expense and otherwise in accordance with Employer's business travel and expense
reimbursement policy applicable to its senior executives as in effect from time
to time.
(c) Vacation. During the Employment Period, Executive shall be entitled
to a number of weeks of paid vacation on an annualized basis, without carryover
accumulation, equal to the number of weeks of paid vacation per year applicable
to senior executives of Employer in accordance with its vacation policy as in
effect from time to time.
7. Termination of Employment.
(a) Termination Due to Death or Disability. In the event that
Executive's employment hereunder terminates due to his death or is terminated by
Employer due to Executive's Disability (as defined below), no termination
benefits shall be payable to or in respect of Executive except as provided in
Section 3 or Section 7(f)(ii). For purposes of this Agreement, "Disability"
shall mean a physical or mental disability that prevents or is reasonably
expected to prevent the performance by Executive of his duties hereunder for a
continuous period of six months or longer. The determination of Executive's
Disability shall (i) be made by an independent physician who is reasonably
acceptable to Employer and Executive (or his representative), (ii) be final and
binding on the parties hereto and (iii) be made taking into account such
competent medical evidence as shall be presented to such independent physician
by Executive and/or Employer or by any physician or group of physicians or other
competent medical experts employed by Executive and/or Employer to advise such
independent physician.
(b) Termination by Employer for Cause. Executive may be terminated for
Cause (as defined below) by Employer, provided that Executive shall have been
given prior written notice of any proposed termination of his employment for
Cause, which notice specifies in reasonable detail the circumstances claimed to
provide the basis for such termination, and Executive shall not have made
reasonable effort to correct such circumstances, satisfactory to the Board,
within 30 days of receipt of such written notice. "Cause" shall mean (i) the
willful failure of Executive substantially to perform his duties hereunder
(other than any such failure due to Executive's physical or mental illness),
(ii) Executive's engaging in willful and serious misconduct that has caused or
is reasonably expected to result in material injury to Employer or any of its
Affiliates, (iii) Executive's conviction of, or entering a plea of guilty or
nolo contendere to, a crime that constitutes a felony or (iv) the willful and
material breach by Executive of any of his obligations hereunder or under any
other written agreement or covenant with Employer or any of its Affiliates.
6
(c) Termination Without Cause. A termination "Without Cause" shall mean
a termination of Executive's employment by Employer other than due to Disability
as described in Section 7(a) or for Cause as described in Section 7(b).
(d) Termination by Executive. Executive may terminate his employment for
any reason. A termination of employment by Executive for "Good Reason" shall
mean a termination by Executive of his employment with Employer following the
occurrence, without Executive's consent, of any of the following events: (i) the
assignment to Executive of duties that are significantly different from, and
that result in a substantial diminution of, the duties that he is to assume on
the Commencement Date, (ii) the assignment to Executive of a title that is
different from and junior to the title specified in Section 2 or the failure of
Parent and Employer to use their reasonable best efforts to cause Executive to
be elected or reelected to serve as a member of their respective Boards of
Directors or (iii) the failure of Employer to obtain the assumption of this
Agreement by any Successor (as defined below) to Employer as contemplated by
Section 14, provided in any such case that within 30 days of Executive's
becoming aware of the occurrence of any such event, Executive shall have
delivered written notice to Employer of his intention to terminate his
employment for Good Reason, which notice specifies in reasonable detail the
circumstances claimed to provide the basis for such termination, and Employer
shall not have made reasonable effort to correct such circumstances, to the
satisfaction of Executive, within 30 days of receipt of such written notice.
(e) Notice of Termination. Any termination of Executive's employment by
Employer pursuant to Section 7(a), 7(b) or 7(c), or by Executive pursuant to
Section 7(d), shall be communicated by a written Notice of Termination addressed
to the other parties to this Agreement. A "Notice of Termination" shall mean a
notice stating that Executive's employment with Employer has been or will be
terminated and the specific provisions of this Section 7 under which such
termination is being effected.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's employment by
Employer Without Cause or a termination by Executive of his employment
for Good Reason in either such case during the Employment Period (any
such termination, a "Qualifying Termination"), Employer shall pay to
Executive (or, following his death, to Executive's beneficiaries) his
full Base Salary through the Date of Termination and, as liquidated
damages in respect of claims based on provisions of this Agreement and
provided Executive executes and delivers a general release of all claims
substantially in the form attached hereto as Exhibit D, the following
additional amounts:
(A) his Base Salary, at the rate in effect hereunder
immediately prior to the Qualifying Termination, which shall be
payable in installments on Employer's regular payroll dates, for
the period (such period, the
7
"Severance Period") beginning on the Date of Termination (as
defined below) and ending on the later of (i) the third
anniversary of the Commencement Date and (ii) the second
anniversary of the Date of Termination; plus
(B) if the Company achieves the performance objectives
established under the Bonus Plan for the Bonus Year that
includes the Date of Termination, an amount, payable in one lump
sum as soon as reasonably practicable following receipt by the
Board of the consolidated financial statements of the Company
for such Bonus Year, equal to the product of (1) the annual
incentive bonus that would have been payable to Executive for
such Bonus Year pursuant to Section 4(b) under the Bonus Plan
had he remained employed for the entire Bonus Year, multiplied
by (2) a fraction, the numerator of which is equal to the number
of days in such Bonus Year that precede the Date of Termination
and the denominator of which is equal to 365, less
(C) the amount, if any, paid or payable to Executive
under the terms of any severance plan, severance policy,
severance program or severance practice of Employer or any of
its Affiliates applicable to Executive, as in effect on the Date
of Termination (a "Severance Program");
provided that Employer may, at any time, pay to Executive, in a single
lump sum and in satisfaction of Employer's obligations under clauses (A)
and (B) of this Section 7(f)(i), an amount equal to (x) the installments
of the Base Salary then remaining to be paid to Executive pursuant to
clause (A) above, and the amount, if any, then remaining to be paid to
Executive pursuant to clause (B) above, without discount for immediate
payment, less (y) the amount, if any, remaining to be paid to Executive
pursuant to any Severance Program identified under clause (C) above.
In addition, in the event of a Qualifying Termination, Employer
shall, during the Severance Period, provide Executive continued coverage
under the medical and other health plans of Employer referred to in
Section 5 (the "Continued Benefits") in which Executive was a
participant immediately prior to the Date of Termination, subject to
timely payment by Executive of all premiums, contributions and other
co-payments required to be paid during such period by senior executives
of Employer under the terms of such plans as in effect from time to
time.
Executive shall not have a duty to mitigate the costs to Employer
under this Section 7(f)(i), except that Continued Benefits shall be
canceled to the extent of any comparable benefit coverage offered to
Executive during the Severance
8
Period by a subsequent employer or other Person (as defined below) for
which Executive performs services, including but not limited to
consulting services.
(ii) If Executive's employment shall terminate upon his death or
due to his Disability or if Employer shall terminate Executive's
employment for Cause or Executive shall terminate his employment without
Good Reason during the Employment Period, Employer shall pay Executive
(or, in the event of his death, his beneficiaries) his full Base Salary
through the Date of Termination or as provided in Section 3 above. In
addition, in the case of any such termination due to Executive's death
or Disability, if the Company achieves the performance objectives
established under the Bonus Plan for the Bonus Year that includes the
Date of Termination, Employer shall pay Executive (or his beneficiaries
if applicable) an amount, payable in one lump sum as soon as reasonably
practicable following receipt by the Board of the consolidated financial
statements of the Company for such Bonus Year, equal to the product of
(1) the annual incentive bonus that would have been payable to Executive
for such Bonus Year pursuant to Section 4(b) under the Bonus Plan had he
remained employed for the entire Bonus Year, multiplied by (2) a
fraction, the numerator of which is equal to the number of days in such
Bonus Year that precede the Date of Termination (exclusive of any time
between the onset of a physical or mental disability that prevents the
performance by Executive of his duties hereunder and the resulting Date
of Termination) and the denominator of which is equal to 365.
(iii) Executive shall be entitled to receive all amounts payable
and benefits accrued under any otherwise applicable plan, policy,
program or practice of Employer in which Executive was a participant
during his employment with Employer in accordance with the terms
thereof, provided that (x) Executive shall not be entitled to receive
any payments or benefits under any such plan, policy, program or
practice providing any bonus or incentive compensation (and the
provisions of this Section 7(f) shall supersede the provisions of any
such plan, policy, program or practice), and (y) the amount, if any,
paid or payable to Executive under the terms of any such plan, policy,
program or practice relating to severance shall reduce the amounts
payable under Section 7(f)(i) as provided in clause (C) thereof.
(g) Date of Termination. As used in this Agreement, the term "Date of
Termination" shall mean (i) if Executive's employment is terminated by his
death, the date of his death, (ii) if Executive's employment is terminated by
Employer for Cause, the latest of the date on which Notice of Termination is
given as contemplated by Section 7(e), the date of termination specified in such
notice and the date any applicable correction period ends, and (iii) if
Executive's employment is terminated by Employer Without Cause, due to
Executive's Disability or by Executive for any reason, the date that is 30 days
after the date on which Notice of Termination is given as contemplated by
9
Section 7(e) or, if no such notice is given, 30 days after the date of
termination of employment.
(h) Resignation upon Termination. Effective as of any Date of
Termination under this Section 7 or otherwise as of the date of Executive's
termination of employment with Employer, Executive shall resign, in writing,
from all Board memberships and other positions then held by him with Employer
and its Affiliates.
8. Unauthorized Disclosure. During the period of Executive's employment
with Employer and the ten-year period following any termination of such
employment, without the prior written consent of the Board or its authorized
representative, except to the extent required by an order of a court having
jurisdiction or under subpoena from an appropriate government agency, in which
event, Executive shall use his best efforts to consult with the Board prior to
responding to any such order or subpoena, and except as required in the
performance of his duties hereunder, Executive shall not disclose any
confidential or proprietary trade secrets, customer lists, drawings, designs,
information regarding product development, marketing plans, sales plans,
manufacturing plans, management organization information (including but not
limited to data and other information relating to members of the Board of
Directors of Parent, Employer or any of their respective Affiliates or to
management of Parent, Employer or any of their respective Affiliates), operating
policies or manuals, business plans, financial records, packaging design or
other financial, commercial, business or technical information (a) relating to
Parent, Employer or any of their respective Affiliates or (b) that Parent,
Employer or any of their respective Affiliates may receive belonging to
suppliers, customers or others who do business with Parent, Employer or any of
their respective Affiliates (collectively, "Confidential Information") to any
third person unless such Confidential Information has been previously disclosed
to the public or is in the public domain (other than by reason of Executive's
breach of this Section 8).
9. Non-Competition. During the period of Executive's employment with
Employer and, following any termination thereof, the period ending on (a) in the
case of a Qualifying Termination, the last day of the Severance Period or (b) in
the case of any other termination of Executive's employment with Employer, the
second anniversary of the effective date of such termination (such applicable
periods collectively, the "Restriction Period"), Executive shall not, directly
or indirectly, become employed in an executive capacity by, engage in business
with, serve as an agent or consultant to, or become a partner, member, principal
or stockholder (other than a holder of less than 1% of the outstanding voting
shares of any publicly held company) of, any Person that competes anywhere in
the United States, Mexico, Latin America or Europe, with any part of the
business of Parent, Employer or any of their respective Affiliates that relates
to producing, marketing, manufacturing, designing, formulating, procuring or
developing facial skin care or body products, color cosmetics, fragrances,
health or beauty supplements or other such products or related materials. For
purposes of this Section 9,
10
the phrase employment "in an executive capacity" shall mean employment in any
position in connection with which Executive has or reasonably would be viewed as
having powers and authorities with respect to any other Person or any part of
the business thereof that are substantially similar, with respect thereto, to
the powers and authorities assigned to the executive officer or officers of
Employer serving in the capacities served by Executive during the Employment
Period or any superior executive officer of Employer in the By-Laws of Employer
as in effect on the date hereof, a copy of the relevant portions of which has
been delivered to Executive on or before the date hereof, and which Executive
hereby confirms that he has reviewed.
10. Non-Solicitation of Employees. During the Restriction Period,
Executive shall not, directly or indirectly, for his own account or for the
account of any other Person anywhere in the United States, Mexico, Latin America
or Europe, (i) solicit for employment, employ or otherwise interfere with the
relationship of Parent, Employer or any of their respective Affiliates with any
natural person throughout the world who is or was employed by or otherwise
engaged to perform services for Parent, Employer or any of their respective
Affiliates at any time during which Executive was employed by Employer (in the
case of any such activity during such time) or during the six-month period
preceding such solicitation, employment or interference (in the case of any such
activity after the Date of Termination), other than any such solicitation or
employment on behalf of Parent, Employer or any of their respective Affiliates
during Executive's employment with Employer, or (ii) induce any employee of
Parent, Employer or any of their respective Affiliates who is a member of
management to engage in any activity which Executive is prohibited from engaging
in under any of Sections 8, 9, 10 or 11 or to terminate his employment with
Employer.
11. Non-Solicitation of Customers. During the Restriction Period,
Executive shall not, directly or indirectly, for his own account or for the
account of any other Person anywhere in the United States, Mexico, Latin America
or Europe, solicit or otherwise attempt to establish any business relationship
of a nature that is competitive with the business or relationship of Parent,
Employer or any of their respective Affiliates with any Person throughout the
world which is or was a customer, client or distributor of Parent, Employer or
any of their respective Affiliates at any time during which Executive was
employed by Employer (in the case of any such activity during such time) or
during the twelve-month period preceding the Date of Termination (in the case of
any such activity after the Date of Termination), other than any such
solicitation on behalf of Parent, Employer or any of their respective Affiliates
during Executive's employment with Employer.
12. Return of Documents. In the event of the termination of Executive's
employment for any reason, Executive shall deliver to Employer all of (a) the
property of each of Parent, Employer and their respective Affiliates and (b) the
documents and data of any nature and in whatever medium of each of Parent,
Employer and their respective
11
Affiliates, and he shall not take with him any such property, documents or data
or any reproduction thereof, or any documents containing or pertaining to any
Confidential Information.
13. Injunctive Relief with Respect to Covenants; Forum, Venue and
Jurisdiction. Executive acknowledges and agrees that the covenants, obligations
and agreements of Executive contained in Sections 8, 9, 10, 11, 12 and 13 relate
to special, unique and extraordinary matters and that a violation of any of the
terms of such covenants, obligations or agreements will cause Employer
irreparable injury for which adequate remedies are not available at law.
Therefore, Executive agrees that Employer shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) as a court of competent jurisdiction may deem necessary or
appropriate to restrain Executive from committing any violation of such
covenants, obligations or agreements. These injunctive remedies are cumulative
and in addition to any other rights and remedies Employer may have. Parent,
Employer and Executive each hereby irrevocably submits to the exclusive
jurisdiction of the courts of California and the Federal courts of the United
States of America, in each case located in Los Angeles, California, in respect
of the injunctive remedies set forth in this Section 13 and the interpretation
and enforcement of Sections 8, 9, 10, 11, 12 and 13 insofar as such
interpretation and enforcement relate to any request or application for
injunctive relief in accordance with the provisions of this Section 13, and the
parties hereto hereby irrevocably agree that (a) the sole and exclusive
appropriate venue for any suit or proceeding relating solely to such injunctive
relief shall be in such a court, (b) all claims with respect to any request or
application for such injunctive relief shall be heard and determined exclusively
in such a court, (c) any such court shall have exclusive jurisdiction over the
person of such parties and over the subject matter of any dispute relating to
any request or application for such injunctive relief, and (d) each hereby
waives any and all objections and defenses based on forum, venue or personal or
subject matter jurisdiction as they may relate to an application for such
injunctive relief in a suit or proceeding brought before such a court in
accordance with the provisions of this Section 13.
14. Assumption of Agreement. Employer shall require any Successor
thereto, by agreement in form and substance reasonably satisfactory to
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Employer would be required to perform it if
no such succession had taken place. Failure of Employer to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to terminate his employment with Employer
for Good Reason as described in Section 7(c) provided that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
12
15. Entire Agreement. This Agreement (including the Exhibits hereto)
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof. All prior correspondence and proposals (including but not
limited to summaries of proposed terms) and all prior promises, representations,
understandings, arrangements and agreements relating to such subject matter
(including but not limited to those made to or with Executive by any other
Person) are merged herein and superseded hereby.
16. Indemnification. Employer hereby agrees that it shall indemnify and
hold harmless Executive to the fullest extent permitted by Delaware law from and
against any and all liabilities, costs, claims and expenses, including all costs
and expenses incurred in defense of litigation (including attorneys' fees),
arising out of the employment of Executive hereunder, except to the extent
arising out of or based upon the gross negligence or willful misconduct of
Executive. Costs and expenses incurred by Executive in defense of such
litigation (including attorneys' fees) shall be paid by Employer in advance of
the final disposition of such litigation upon receipt by Employer of (a) a
written request for payment, (b) appropriate documentation evidencing the
incurrence, amount and nature of the costs and expenses for which payment is
being sought, and (c) an undertaking adequate under Delaware law made by or on
behalf of Executive to repay the amounts so paid if it shall ultimately be
determined that Executive is not entitled to be indemnified by Employer under
this Agreement, including but not limited to as a result of such exception.
17. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding on and
inure to the benefit of Parent, Employer, and their respective Successors and
permitted assigns. This Agreement shall also be binding on and inure to the
benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other parties hereto, except as
provided pursuant to this Section 17(a). Each of Parent and Employer may effect
such an assignment without prior written approval of Executive upon the transfer
of all or substantially all of its business and/or assets (by whatever means),
provided that the Successor to Employer shall expressly assume and agree to
perform this Agreement in accordance with the provisions of Section 14.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without reference to principles of
conflicts of law, provided that the indemnification provisions contained in
Section 16 shall be governed by and construed in accordance with Delaware law.
(c) Taxes. Employer may withhold from any payments made under this
Agreement all applicable taxes, including but not limited to income, employment
and social insurance taxes, as shall be required by law.
13
(d) Amendments. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is approved by the
Board or a Person authorized thereby and is agreed to in writing by Executive
and, in the case of any such modification, waiver or discharge affecting the
rights or obligations of Parent, is approved by the Board of Directors of Parent
or a Person authorized thereby. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No waiver of any provision of this Agreement shall be
implied from any course of dealing between or among the parties hereto or from
any failure by any party hereto to assert its rights hereunder on any occasion
or series of occasions.
(e) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
(f) Notices. Any notice or other communication required or permitted to
be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or, if so mailed, on the third business day after the
mailing thereof, and (iv) addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) If to Employer, to it at:
0000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
(B) if to Parent, to it at:
0 Xxxxxxxxx Xxxxx
0000 Xxxxxxxxxx
Xxxxxxxxxx
Attention: General Counsel
(C) if to Executive, to him at his residential address as
currently on file with Employer.
Copies of any notices or other communications given under this Agreement shall
also be given to:
14
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
and
Xxxxxxx X. Xxxxxxxxx & Associates, P.A.
00 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
(g) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
(h) Headings. The section and other headings contained in this Agreement
are for the convenience of the parties only and are not intended to be a part
hereof or to affect the meaning or interpretation hereof.
(i) Certain Definitions.
"Affiliate": with respect to any Person, means any other Person that,
directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with the first Person, including but
not limited to a Subsidiary of the first Person, a Person of which the first
Person is a Subsidiary, or another Subsidiary of a Person of which the first
Person is also a Subsidiary.
"Control": with respect to any Person, means the possession, directly or
indirectly, severally or jointly, of the power to direct or cause the direction
of the management policies of such Person, whether through the ownership of
voting securities, by contract or credit arrangement, as trustee or executor, or
otherwise.
"Person": any natural person, firm, partnership, limited liability
company, association, corporation, company, trust, business trust, governmental
authority or other entity.
15
"Subsidiary": with respect to any Person, each corporation or other
Person in which the first Person owns or Controls, directly or indirectly,
capital stock or other ownership interests representing 50% or more of the
combined voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.
"Successor": of a Person means a Person that succeeds to the first
Person's assets and liabilities by merger, liquidation, dissolution or otherwise
by operation of law, or a Person to which all or substantially all the assets
and/or business of the first Person are transferred.
16
IN WITNESS WHEREOF, Parent and Employer have duly executed this
Agreement by their authorized representatives, and Executive has hereunto set
his hand, in each case effective as of the date first above written.
CDRJ Investments (Lux) SA
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
Jafra Cosmetics International, Inc.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
Executive:
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
17
