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EXHIBIT 10.66
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT (the "Agreement") made as of the 18th day of
August, 1994, among Renaissance Cosmetics, Inc., a Delaware corporation (the
"Company"), Cosmar Corporation, a Delaware corporation ("CC") and a wholly
owned subsidiary of the Company and Xxxxx X. Xxxxx (the "Selling Shareholder").
W I T N E S S E T H
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company and CC are purchasing from Cosmar Corporation and
Precision Molded Plastics, Inc. (the "Selling Entities") the assets and
businesses of such Selling Entities for an aggregate purchase price of
$66,327,977.69 in cash and notes, plus the assumption of the Assumed
Liabilities, as defined in the Purchase Agreement (the "Acquisition").
WHEREAS, the Selling Entities are engaged in the business of
manufacturing and marketing artificial fingernails and related nail care
products on both a domestic and international basis (as the same may be
expanded as to artificial fingernails and related nail care products in
ordinary course, the "Business").
WHEREAS, the Company and/or CC have purchased from the Selling Entities
trade secrets, confidential business relationships, and other confidential and
proprietary property and information in connection with the business and
operations of the Selling Entities which are essential and integral components
of their success and profitability.
WHEREAS, prior to the Acquisition, the Selling Shareholder was a
principal shareholder of the Selling Entities and was actively involved in the
business of the Selling Entities and, as a result, possesses an intimate
knowledge of the Business.
WHEREAS, the Company and CC wish to assure themselves that the Selling
Shareholder will not engage in certain types of activities that would be
competitive with or harmful to the Business, and the Selling Shareholder has
agreed not to engage in any such activities, subject to the terms and
conditions of this Agreement.
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It is therefore agreed as follows:
1. Confidentiality. The Selling Shareholder shall not at any time,
divulge to any person, firm or corporation any confidential, proprietary or
privileged information received by him during the course of his association
with the Business or the Selling Entities, whether before or after the date
hereof, with regard to the financial, business, operations, method of business,
customer and supplier information, independent contractor information,
know-how, procedures or other confidential information regarding the affairs of
and of the Business or the Selling Entities, or any of their respective
officers, directors, stockholders, subsidiaries, affiliates, customers or
suppliers, and all of the foregoing shall be kept confidential and shall not be
revealed to anyone except as may be otherwise required by law.
2. Non-Solicitation. The Selling Shareholder shall not, at any time
during or within five years after the date of this Agreement, solicit,
interfere with or employ any customer, supplier or employee of the Business;
provided, however, that the terms of this section 2 shall not prohibit the
Selling Shareholder from employing or otherwise associating with Xxxxxx X.
Xxxxxxx, Xxxx Xxxxx, Aldran X. XxXxxx or Xxxx Xxxxxxx.
3. Non-Competition. The Selling Shareholder shall not, for a period of
five years from the date of this Agreement, directly or indirectly (i) acquire
or own in any manner, any interest in any person, firm, corporation or other
entity of any kind (collectively a "Person") which is engaged in any facet of
the Business in the continental United States, (ii) engage, through or in
connection with any Person, in any facet of the Business or competes in any way
with the Business within the continental United States, or (iii) be employed in
any capacity by, serve as an employee, agent or officer or director of, serve
as a consultant or advisor to, or otherwise participate in the management or
operation of, any Person which (x) engages in any facet of the Business or (y)
competes with the Business in any way; except that the Selling Shareholder
shall have the right to make passive investments in (i) public companies, and
(ii) investments not related to the business of the Sellers.
4. Enforceability. The Selling Shareholder acknowledges that this
Agreement is being entered into concurrently with the closing of the
Acquisition and that the covenants contained in section 1, section 2 and
section 3 of this Agreement are an essential part of the Acquisition and the
transactions contemplated in connection therewith. The Selling Shareholder
further acknowledges that the Acquisition and the transactions contemplated
thereby were designed to effect a sale by the Selling Entities in a manner
intended to qualify the Selling Shareholder as "a shareholder of a corporation
which
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sells all or substantially all of its operating assets together with the
goodwill of the corporation" within the meaning of Section 16601 of the
Business and Professions Code of California ("Code"). The Selling Shareholder
acknowledges that he has read said Section 16601 of the Code, understand the
terms thereof and agree that the transactions contemplated by this Agreement
are within the scope and intent of Section 16601 and an exception to Section
16600 of the Code and agrees to be bound thereby. The Selling Shareholder
acknowledges that no person would invest any monies in the Company, CC or the
Business whether as a shareholder or lender without the benefit of the
foregoing covenants by the Selling Shareholder. The Selling Shareholder
acknowledges that he has consulted with counsel concerning the terms of this
Agreement, including, but not limited to, section 1, section 2 and section 3
and that the provisions of this Agreement are fair and reasonable and
enforceable, at least insofar as they apply to the Business as it exists on the
date hereof. The Selling Shareholder further acknowledges that compliance with
the provisions hereof will not create any hardship as he has independent means
and sufficient income to be fully self-supporting without competing with
the Business or otherwise violating any of the provisions hereof. Accordingly,
the Selling Shareholder agrees to be bound by the provisions hereof to the
maximum extent permitted by law, it being the intent and spirit of the parties
that the foregoing shall be fully enforceable. However, the parties further
agree that, if any of the provisions hereof shall for any reason be held to be
excessively broad as to duration, geographical scope, property or subject
matter, it shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law as it shall herein
pertain. This covenant not to compete is designed to protect the good will
associated with the assets being acquired from the Selling Entities, and the
parties expressly agree that no part of the purchase price for said assets is
separately allocable to this covenant.
5. 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.
6. 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
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with the requirements for a waiver of compliance as set forth in this section 6.
7. 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):
a. If to the Company or CC, to:
Renaissance Cosmetics, Inc.
c/x Xxxx, Xxxx & Company
Three Pickwick Plaza
Greenwich, Connecticut 06830
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx Flattau & Klimpl
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
b. If to the Selling Shareholder, to:
Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxx & Weiner
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
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.
8. Assignment. Neither this Agreement nor any of the Selling
Shareholder's rights, powers, duties or obligations hereunder may be assigned
by the Selling Shareholder. This Agreement shall be binding upon and inure to
the benefit of the Selling Shareholder and his heirs and legal representatives
and the Company, CC and their successors and assigns. Successors of the Company
and CC shall include, without limitation, any person acquiring, directly or
indirectly, all or substantially all of the assets of the Company or CC,
whether by merger, consolidation,
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purchase, lease or otherwise, and such successor shall thereafter be deemed
"the Company" or CC, as the case may be, for the purposes hereof.
9. 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 federal or state courts at Los Angeles shall
have exclusive jurisdiction over all disputes arising hereunder and the parties
consent to personal jurisdiction thereunder.
10. Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto. There are no restrictions,
promises, representations, warranties, covenants or undertakings other than
those expressly set forth or referred to herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such transactions.
RENAISSANCE COSMETICS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
COSMAR CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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