EXHIBIT 10(D)
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SERVICES AGREEMENT
BY AND BETWEEN
THE COSMETIC CENTER, INC.
AND
REVLON CONSUMER PRODUCTS CORPORATION
DATED AS OF APRIL 25, 1997
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SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated as of April 25,
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);
(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; and
(l) Revlon security staff for general security services.
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. Notwithstanding anything herein to the
contrary, Cosmetic Center agrees to pay Revlon $340,000 within 10 days
following the date hereof, which payment shall be in lieu of reimbursement
for the actual severance costs or expenses incurred by Revlon in connection
with the termination by Revlon of the hourly employees of Revlon and/or its
subsidiaries referred to in Section 1.1(k).
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:/s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President - Finance
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REVLON CONSUMER PRODUCTS CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
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