Exhibit 10.7
AGREEMENT
This Agreement (this "Agreement") is entered into by and
between Xxxxxx X.X. Kaung ("Kaung") and Renaissance Cosmetics, Inc. (the
"Company") as of this 1st day of December, 1997. Kaung and the Company are
sometimes referred to herein individually as a "Party" and together as the
"Parties."
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be bound
hereby, agree as follows:
1. Resignation from Employment; Payments from the Company.
Kaung's resignation from his position with the Company shall be effective as of
December 1, 1997 (the "Effective Date"). The Company shall pay Kaung his salary
at his current base rate of pay through the Effective Date, in accordance with
the Company's standard and customary payroll practices and subject to standard
withholding and deductions for applicable taxes. Within 14 days after the
Effective Date, Kaung shall receive payment for all accrued but unused vacation
time, plus reimbursement for all properly documented business expenses remaining
unreimbursed as of such date.
2. Continuation of Certain Benefits.
a. The Company, at its expense, shall continue to provide
medical, dental and long term disability insurance coverage to Kaung until such
time as Kaung reaches the age of 65, under the same programs available to all
Company employees from time to time, and to the extent that such benefits
continue to be made generally available to the Company's employees. Kaung's
spouse and dependents shall be permitted to participate in such benefit programs
to the extent, and in the same manner as, the spouses and dependents of the
Company's employees are entitled to participate in such programs.
b. The Company shall provide Kaung with the continued use of
the vehicle currently used by Kaung under the senior executive Company car
program. The Company may, in its discretion, continue to lease the vehicle (at
its expense) and purchase it at the end of the lease term, and transfer title to
the vehicle to Kaung at the time of purchase. In addition, Kaung shall be
entitled to retain the laptop computer currently in his possession for so long
as he is providing consulting services to the Company pursuant to the Consulting
Agreement of even date herewith.
c. All other Company-provided insurance, retirement or other
benefit programs shall terminate as of the Effective Date.
3. Stock and Stock Options.
a. In consideration for the continuation of the benefits
described in paragraph 2 above, and notwithstanding anything in the Company's
First Amended and Restated Stock Option
Plan and Kaung's Stock Option Agreement to the contrary, as of the Effective
Date, Kaung agrees to forfeit his rights to all of his stock options, including
such portion of the stock options as have vested prior to the Effective Date,
and all of his stock options shall terminate as of the Effective Date.
b. Notwithstanding anything in the Stockholder Agreement
between the Company and Kaung to the contrary, the Company shall have the option
to repurchase all or any portion of the 2,690 shares of Common Stock of the
Company owned by Kaung at a price of $37.17 per share. The Company's option to
repurchase such shares shall be assignable by the Company, in whole or in part,
to anyone, in its discretion. The Company, or its assignee(s) shall exercise
such option by giving written notice of its (their) intent to exercise to Kaung
by not later than March 31, 1998 (the "Repurchase Notice"), setting forth the
number of shares to be repurchased ("Repurchased Shares") and the closing date,
which shall take place not longer than 30 days after the date of the Repurchase
Notice, or as otherwise agreed to by Kaung and the Company (the "Closing Date").
On the Closing Date, the Company, or its assignee(s), shall deliver payment for
the Repurchased Shares in cash and Kaung shall deliver the certificates for the
Repurchased Shares, duly endorsed with payment of all stock transfer taxes, if
any, and free and clear of all liens, claims or encumbrances.
4. Releases of Claims.
a. Kaung, for himself and his agents, representatives,
trustees, guardians, conservators, subrogees, assigns, beneficiaries, executors,
administrators, heirs and successors, does hereby voluntarily and knowingly,
unconditionally and absolutely release and forever discharge the Company and its
present and former principals, officers, directors, employees, shareholders,
agents, partners, joint venturers, subsidiaries, affiliates, related
corporations, successors and assigns, from any and all claims, complaints,
contracts, liabilities, obligations, demands, debts, damages, losses, costs,
expenses, attorneys' fees, rights of action and causes of action, of any kind or
character whatsoever, at law or in equity, whether known or unknown, suspected
or unsuspected, relating to or arising out of Kaung's employment with the
Company. Excluded from this release are all claims relating to the enforcement
of this Agreement and the Consulting Agreement of even date herewith between the
Company and River International, Inc. (the "Consulting Agreement").
b. The Company, for itself and its present and former
principals, officers, directors, employees, shareholders, agents, partners,
joint venturers, subsidiaries, affiliates, related corporations, successors and
assigns, does hereby voluntarily and knowingly, unconditionally and absolutely
release and forever discharge Kaung and his agents, representatives, trustees,
guardians, conservators, subrogees, assigns, beneficiaries, executors,
administrators, heirs and successors, from any and all claims, complaints,
contracts, liabilities, obligations, demands, debts, damages, losses, costs,
expenses, attorneys' fees, rights of action and causes of action, of any kind or
character whatsoever, at law or in equity, whether known or unknown, suspected
or unsuspected, related to or arising out of Kaung's employment with the
Company. Excluded from this release are all claims relating to the enforcement
of this Agreement and the Consulting Agreement.
5. Proprietary and Company Materials. Within five (5) business
days after a
2
request from the Company, Kaung shall return to the Company all proprietary and
other materials of the Company then in his possession, including, without
limitation, memoranda, sales brochures, credit cards, telephone charge cards,
manuals, building keys and passes, courtesy parking passes, financial
information, business or marketing plans, reports, projections, software
programs and data compiled with the use of those programs, tangible copies of
trade secrets and confidential information, product samples, and any and all
other information or property held or used by Kaung in connection with his
employment with the Company.
6. Non-Solicitation. Kaung agrees that for a period of one (1)
year from the Effective Date, he will not (i) attempt to employ or employ, (ii)
attempt to assist in employing or assist in employing, (iii) attempt to
recommend the employment of or recommend the employment of, or (iv) otherwise
interfere with the employment of any employee of the Company while that employee
is employed by the Company or during the one-year period following the
termination of the employee's employment with the Company.
7. Confidentiality. Kaung agrees that he will not use for his
own benefit or for the benefit of any third party, or directly or indirectly
disclose to any third party, any confidential, proprietary or privileged
information to which Kaung became privy during the period of his employment with
the Company, including, without limitation, information relating to the
financial condition, business, operations, or method of business of the Company
or its affiliates, customer and supplier information, independent contractor
information, know-how, trade-secrets, procedures, litigation or other
confidential information regarding the affairs of the Company, or any of its
officers, directors, stockholders, subsidiaries, affiliates, customers or
suppliers, except for information which is or becomes generally available to the
public or disclosed to a third party through no fault of Kaung, or as required
by law.
8. Notices. All notices or other communications in connection
with this Agreement shall be in writing and may be given by personal delivery or
mailed, certified mail, return receipt requested, postage prepaid or by a
nationally recognized overnight courier to the Parties at the addresses set
forth below (or at such other address as one Party may specify in a notice to
the other Party):
If to the Company: Renaissance Cosmetics, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Group Vice President,
Corporate Development and Human
Resources
with a copy to: Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxx
3
If to Kaung: 00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
10. Attorneys' Fees. The Parties agree that, if any action is
instituted to enforce this Agreement, the Party not prevailing shall pay to the
prevailing Party all costs and expenses, including reasonable attorneys' fees,
incurred by such prevailing Party in connection with such action. If both
Parties prevail in part in such action, the court or arbitrator(s) shall
allocate the financial responsibility for such costs and expenses.
11. Entire Agreement; Amendments. This Agreement represents
the entire agreement between the Parties with respect to the matters addressed
herein and supersedes all prior negotiations, representations or agreements
between the Parties, either written or oral, on the subject hereof. This
Agreement may not be amended, modified, altered or rescinded except upon a
written instrument designated as an amendment to this Agreement and executed by
both Parties hereto.
12. Severability. If any provision of this Agreement, or part
thereof, is held invalid, void or voidable as against public policy or
otherwise, the invalidity shall not affect other provisions, or parts thereof,
which may be given effect without the invalid provision or part.
13. Counterparts; Telecopied Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which when taken together shall constitute one and the same
agreement. Signatures may be exchanged by telecopy and the originals shall be
exchanged by overnight mail. Each of the Parties agrees that it/he will be bound
by its/his telecopied signature and that it/he accepts the telecopied signature
of the other Party.
14. Remedies. The Parties agree that they shall have the right
to exercise any and all remedies available at law or in equity to enforce this
Agreement, and that such remedies shall be cumulative and non-exclusive. With
respect to paragraphs 6 and 7 hereof, the Parties acknowledge that remedies at
law may be inadequate and damages from a breach thereof may be irreparable, and
therefore the Parties consent to specific performance or injunctive relief.
4
The Parties have executed this Agreement as of the day and
date first written above.
RENAISSANCE COSMETICS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
Title: GVP
/s/ Xxxxxx X.X. Kaung
---------------------------
XXXXXX X.X. KAUNG
5
