EXHIBIT 10.28
EMPLOYMENT AGREEMENT, dated as of May 10, 1999, between REVLON CONSUMER
PRODUCTS CORPORATION, a Delaware corporation ("RCPC" and, together with its
parent Revlon, Inc. and its subsidiaries, the "Company"), and D. ▇▇▇▇ ▇▇▇▇▇ (the
"Executive").
RCPC wishes to continue the employment of the Executive with the Company,
and the Executive wishes to accept continued employment with the Company, on the
terms and conditions set forth in this Agreement.
Accordingly, RCPC and the Executive hereby agree as follows:
Employment, Duties and Acceptance.
1.1 Employment, Duties. RCPC hereby employs the Executive for the Term
(as defined in Section 2.1), to render exclusive and full-time services to the
Company, in the Executive's present capacity, and to perform such other duties
of at least an equivalent level as may be assigned by the Executive's
supervisor. The Executive's title shall be the Executive's present title or such
other title of at least equivalent level consistent with the Executive's duties
from time to time as may be assigned to the Executive by the Executive's
supervisor.
1.2 Acceptance. The Executive hereby accepts such employment and agrees
to render the services described above. During the Term, the Executive agrees to
serve the Company faithfully and to the best of the Executive's ability, to
devote the Executive's entire business time, energy and skill to such
employment, and to use the Executive's best efforts, skill and ability to
promote the Company's interests.
1.3 Location. The duties to be performed by the Executive hereunder
shall be performed primarily at the office of RCPC in the New York City
metropolitan area, subject to reasonable travel requirements consistent with the
nature of the Executive's duties from time to time on behalf of the Company.
2. Term of Employment; Certain Post-Term Benefits.
2.1 The Term. The term of the Executive's employment under this
Agreement (the "Term") shall commence on the date hereof (the "Effective Date")
and shall end on the last day of the month thirty-six months following the
consummation of the first Triggering Event to occur, provided, however, that if
no Triggering Event occurs during the Term on or before December 31, 1999, the
Term shall expire on April 30, 2002. During any period that the Executive's
employment shall continue following termination of the Term, the Executive shall
be eligible for severance on terms no less favorable than those of the Revlon
Executive Severance Plan as in effect on the date of this Agreement, subject to
the terms thereof, and the Executive shall be deemed to be an employee at will.
As used herein, "Triggering Event" shall mean the first to occur of any of the
following:
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(i) a merger of or combination involving Revlon, Inc. or RCPC or any
parent thereof other than a merger or combination in which more than 50% in
voting power of the voting securities of the surviving or resulting corporation
or other entity outstanding immediately after such transaction is beneficially
owned (as such term is defined in Section 13(d) of the Securities Exchange Act
of 1934, as amended) by persons who beneficially owned outstanding voting
securities of Revlon, Inc. immediately prior to such transaction, or the
execution of a definitive contract for such a merger or combination provided the
same is in fact consummated;
(ii) the adoption of a Plan contemplating the liquidation of all or
substantially all of the business and assets of the Company;
(iii) a sale or other disposition of all or substantially all of the
assets of the Company or of the business unit to which the Executive's services
are at the time dedicated, if any, whether for cash, securities or other
property, other than to a corporation or other entity in which more than 50% in
voting power of the outstanding voting securities outstanding immediately after
such transaction is beneficially owned by persons who beneficially owned
outstanding voting securities of Revlon, Inc. immediately prior to such
transaction, or the execution of a definitive contract for such a sale or other
disposition provided the same is in fact consummated; or
(iv) more than 50% of the voting power of the outstanding voting
securities of Revlon, Inc. becomes beneficially owned, directly or indirectly,
by one person or more than one person acting as a group other than the current
beneficial owner of the ultimate parent company of Revlon, Inc.
2.2 Special Curtailment. The Term shall end earlier than the date
provided in Section 2.1, if sooner terminated pursuant to Section 4.
3. Compensation; Benefits.
3.1 Salary. As compensation for all services to be rendered pursuant to
this Agreement, the Company agrees to pay the Executive during the Term a base
salary, payable bi-weekly in arrears, at the annual rate of not less than the
Executive's base salary on the date hereof (the "Base Salary"). All payments of
Base Salary or other compensation hereunder shall be less such deductions or
withholdings as are required by applicable law and regulations. In the event
that RCPC, in its sole discretion, from time to time determines to increase the
Base Salary, such increased amount shall, from and after the effective date of
the increase, constitute "Base Salary" for purposes of this Agreement and shall
not thereafter be decreased.
3.2 Bonus. In addition to the amounts to be paid to the Executive
pursuant to Section 3.1, the Executive shall be eligible to receive annual bonus
calculated at the same target and maximum percentages of Base Salary as the
Executive currently is eligible to receive, based upon achievement of objectives
set annually not later than March 31 of such year.
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Notwithstanding the foregoing, if the Executive's employment shall end pursuant
to Section 4.2 at any time during the Term or pursuant to Section 4.4 at any
time prior to the occurrence of a Triggering Event, the Executive's bonus with
respect to the calendar year in which the termination occurs shall be an amount
equal to the bonus that would have been payable to the Executive with respect to
such year if the Executive had remained employed to the date for payment of
bonuses under such Plan, multiplied by a fraction of which the numerator is the
number of days of the Term during such year and the denominator is 365, and if
the Executive's employment shall end pursuant to Section 4.4 on or after the
occurrence of a Triggering Event, the Executive's bonus with respect to the
calendar year in which the termination occurs shall be an amount equal to the
greater of the full year bonus that would have been payable to the Executive as
above described or the Executive's full year target bonus, in either case
without proration, notwithstanding any contrary provision of any plan.
3.3 Stock Options. The Executive shall be recommended to the
Compensation Committee or other committee of the Board administering the Revlon,
Inc. Second Amended and Restated 1996 Stock Plan or any plan that may replace
it, as from time to time in effect, to receive an option not later than February
28 of each year of the Term covering a number of shares not less than the option
granted to the Executive on February 22, 1999, on terms substantially the same
as other senior executives of the Executive's level, provided that if the Term
is to end pursuant to Section 2.1 otherwise than at a calendar year end, the
Company shall not be required to recommend that the stock option to be granted
to the Executive with respect to such final year of the Term cover more than
that number of shares that is the product of multiplying the annual grant
provided for above by a fraction of which the numerator is the number of days of
the Term during such final year and the denominator is 365, and provided further
that this Section 3.3 shall not apply following a Triggering Event.
3.4 Business Expenses. RCPC shall pay or reimburse the Executive for
all reasonable expenses actually incurred or paid by the Executive during the
Term in the performance of the Executive's services under this Agreement,
subject to and in accordance with the Company's applicable expense reimbursement
and related policies and procedures as in effect from time to time.
3.5 Vacation. During each year of the Term, the Executive shall be
entitled to a vacation period or periods in accordance with the vacation policy
of the Company as in effect from time to time, but not less than the Executive's
current entitlement.
3.6 Fringe Benefits. During the Term, the Executive shall be entitled
to continue to participate in those qualified and non-qualified defined benefit,
defined contribution, insurance, medical, dental, disability and other benefit
plans and programs of the Company as from time to time in effect (or their
successors) in which the Executive participated on the date hereof as and if in
effect from time to time and in such other plans and programs as may be made
available to senior executives of the Company of the Executive's level
generally. In addition,
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during the Term the Company shall provide to the Executive an automobile, in
accordance with the Company's executive automobile program, of a class at least
comparable to the automobile currently assigned to the Executive, and the
Executive shall be entitled to reimbursement for tax preparation and financial
counseling services with annual maximums at least comparable to those current in
effect.
4. Termination.
4.1 Death. If the Executive shall die during the Term, the Term shall
terminate and no further amounts or benefits shall be payable hereunder except
pursuant to life insurance provided under Section 3.6.
4.2 Disability. If during the Term the Executive shall become
physically or mentally disabled, whether totally or partially, such that the
Executive is unable to perform the Executive's services hereunder for (i) a
period of six consecutive months or (ii) shorter periods aggregating six months
during any twelve month period, RCPC may at any time after the last day of the
six consecutive months of disability or the day on which the shorter periods of
disability shall have equaled an aggregate of six months, by written notice to
the Executive (but before the Executive has returned to active service following
such disability), terminate the Term and no further amounts or benefits shall be
payable hereunder except as provided in Section 3.6.
4.3 Cause. RCPC may at any time by written notice to the Executive
terminate the Term for "Cause" and, upon such termination, the Executive shall
be entitled to receive no further amounts or benefits hereunder, except as
required by law. As used herein the term "Cause" shall mean gross neglect by the
Executive of the Executive's duties hereunder, conviction of the Executive of
any felony, conviction of the Executive of any lesser crime or offense involving
the property of the Company or any of its affiliates, willful misconduct by the
Executive in connection with the performance of the Executive's duties hereunder
or other material breach by the Executive of this Agreement, or any other
conduct on the part of the Executive which would make the Executive's continued
employment with the Company materially prejudicial to the best interests of the
Company.
4.4 Company Breach; Other Termination. The Executive shall be entitled
to terminate the Term and the Executive's employment upon 60 days' prior written
notice in the event that RCPC materially breaches any of its obligations
hereunder or that at any time prior to a Triggering Event the Compensation
Committee (or other appropriate Committee) of the Board of Directors of Revlon,
Inc. shall fail to implement the recommendations of management regarding stock
options pursuant to Section 3.3. In addition, at any time following a Triggering
Event, the Executive shall be entitled to terminate the Term and the Executive's
employment upon 60 days' prior written notice to RCPC for "Good Reason". As used
herein, the term "Good Reason" shall mean any of the following occurring
following a Triggering Event which is not agreed to in writing by the Executive:
(a) a substantial adverse change in the Executive's
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assigned responsibilities, (b) a relocation of the Executive's principal place
of business to a location which increases the Executive's round-trip commutation
by more than 50 miles, (c) failure of the Executive to continue participation in
bonus, salary review and equity incentive (or equivalent cash incentive) plans
and programs at least substantially equivalent to those provided to the
Executive prior to the Triggering Event, or (d) the failure of the Executive to
participate in all material employee benefit plans and fringe benefit
arrangements on substantially the same basis as like executives of the major
business unit of which the Executive is a part, provided however that none of
the foregoing events shall constitute "Good Reason" unless within 30 days after
obtaining actual knowledge of such event the Executive gives written notice to
the Company of the Executive's intention to resign, specifically identifying the
event constituting Good Reason therefor, and the Company shall fail to cure such
event within 30 days after such notice. In addition, RCPC shall be entitled to
terminate the Term and the Executive's employment at any time and without prior
notice otherwise than pursuant to the provisions of Section 4.2 or 4.3. In
consideration of the Executive's covenant in Section 5.2, upon termination under
this Section 4.4 by the Executive, or in the event RCPC so terminates the Term
otherwise than pursuant to the provisions of Section 4.2 or 4.3, RCPC agrees,
and the Company's sole obligation arising from such termination (except as
otherwise provided in Section 3.6) shall be (at the Executive's election by
written notice within 10 days after such termination), for RCPC either
(i) to make the payment in lieu of bonus prescribed by Section 3.2 and
to continue payments in lieu of Base Salary in the amounts prescribed by Section
3.1 and continue the Executive's participation in the group life insurance and
in the medical and dental plans of the Company in which the Executive was
entitled to participate pursuant to Section 3.6 (in each case less amounts
required by law to be withheld) through the date on which the Term would
otherwise have expired pursuant to Section 2.1, provided that such benefit
continuation is subject to the terms of such plans, provided further that such
group life insurance continuation is subject to a limit of two years pursuant to
the terms thereof, provided further that the Executive shall cease to be covered
by medical and/or dental plans of the Company at such time as the Executive
becomes covered by like plans of another company, and provided finally that the
Executive shall, as a condition, execute such release, confidentiality,
non-competition and other covenants as would be required in order for the
Executive to receive payments and benefits under the Policy referred to in
clause (ii) below, or (ii) to make the payments and provide the benefits
prescribed by the Executive Severance Policy of the Company as in effect on the
date of this Agreement other than the provision in Paragraph IIIC(ii)
establishing a limit of six months on the lump sum payment provided for therein,
which shall not be applicable to the Executive, upon the Executive's compliance
with the terms thereof. If such termination of employment shall occur prior to a
Triggering Event, any compensation earned by the Executive from other employment
or a consultancy shall reduce the payments required pursuant to clause (i) above
or shall be governed by the terms of the Executive Severance Policy as modified
by the foregoing in the case of clause (ii) above, but if the Executive's
termination of employment shall occur following a Triggering Event, the
Executive shall have no duty to mitigate by seeking other employment or
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otherwise and no compensation earned by the Executive from other employment or a
consultancy shall reduce the payments provided for by clause (i) or (ii).
4.5 Section 280G.
4.5.1 If it shall be determined by the firm of Ernst & Young (or if
such firm shall be unable to serve, by another so-called Big 5 accounting firm
selected by such firm) ("E&Y") that there is not substantial authority to
support the deductibility for federal income tax purposes of one or more
payments or benefits due to the Executive, pursuant to this Agreement or
otherwise, by reason of section 280G of the Internal Revenue Code as amended
(the "Code") or any successor provisions, then RCPC shall reduce the payment in
lieu of bonus provided for in Section 3.2 and then the payments in lieu of Base
Salary provided for in Section 4.4 (said reductions to be applied in inverse
order against the last payments otherwise due) to the extent necessary to avoid
or, if full avoidance is not possible by such reductions, to minimize, the loss
of deductions described above, provided that (a) except as specified in clause
(b) below, such reductions shall not exceed the amount of (i) payments or
benefits due solely as a result of this Agreement (and not as a result of the
Executive's participation in any incentive or benefit plan or arrangement
applicable to the Executive without regard to this Agreement), (ii) benefits
arising from the grant of any options to the Executive effective May 10, 1999 or
thereafter, and (iii) benefits arising from the acceleration to February 12,
2000 of the exercisability of the stock options granted to the Executive
effective February 12, 1999 (and not as a result of the grant of such stock
options), provided that (b) such reductions shall exceed the amount specified in
clause (a) above if and to the extent that E&Y determines that on an after-tax
basis a further reduction pursuant to this clause (b) is more favorable to the
Executive than foregoing such further reduction. The parties agree that all
income tax returns filed for the periods affected by the foregoing shall be
filed on a basis consistent with the determinations of E&Y pursuant hereto, and
that the determinations of E&Y with respect to the foregoing shall be final and
binding and not subject to judicial or other review (except by E&Y at its own
instance before or after any filing). RCPC shall pay all fees and charges of E&Y
in connection with this Section 4.5.
4.5.2 The parties acknowledge that as a result of uncertainty in the
application of Section 280G of the Code at the time of any determination by E&Y
pursuant to Section 4.5.1, it is possible that amounts will be paid or
distributed by RCPC to or for the benefit of the Executive which the parties
intended under Section 4.5.1 not to have been paid or distributed (an
"Overpayment") or that amounts will not be paid or distributed by RCPC to or for
the benefit of the Executive that the parties intended under Section 4.5.1 to
have been paid or distributed (an "Underpayment"). In the event that E&Y (based
upon the assertion of a deficiency by the Internal Revenue Service against RCPC
or its affiliates or against the Executive or at E&Y's own instance before or
after any filing or deficiency) determines that an Overpayment or an
Underpayment has been made, such amount shall be treated for all purposes as a
loan by RCPC (in the case of an Overpayment) or by the Executive (in the case of
an Underpayment) to the other party which shall, promptly following notice of
such determination by E&Y, be repaid
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together with interest at the applicable federal rate provided for in Section
7872(f)(2) of the Code, provided however that to the extent that any Overpayment
would result in a reduction of payments or benefits other than those referred to
in subclauses (i), (ii) and (iii) of Section 4.5.1(a), such loan shall be deemed
made and the Executive shall be required to repay the same only to the extent
that E&Y determines that on an after-tax basis such loan and repayment pursuant
to this Section 4.5.2 is more favorable to the Executive than foregoing such
loan and repayment, and provided further that no loan shall be deemed to have
been made and no amount shall be required to be repaid pursuant to this Section
4.5.2 to the extent that in the opinion of counsel to the Company such loan and
repayment would not either reduce the amount on which the Executive is subject
to excise tax or increase the amount of payments that are deductible by the
Company in relation to Section 280G of the Code.
4.6 Litigation Expenses. If RCPC and the Executive become involved in
any action, suit or proceeding relating to the alleged breach of this Agreement
by RCPC or the Executive, then if and to the extent that a final judgment in
such action, suit or proceeding is rendered in favor of the Executive, RCPC
shall reimburse the Executive for all expenses (including reasonable attorneys'
fees) incurred by the Executive in connection with such action, suit or
proceeding or the portion thereof adjudicated in favor of the Executive. Such
costs shall be paid to the Executive promptly upon presentation of expense
statements or other supporting information evidencing the incurrence of such
expenses.
5. Protection of Confidential Information; Non-Competition.
5.1 The Executive acknowledges that the Executive's services will be
unique, that they will involve the development of Company-subsidized
relationships with key customers, suppliers, and service providers as well as
with key Company employees and that the Executive's work for the Company has
given and will give the Executive access to highly confidential information not
available to the public or competitors, including trade secrets and confidential
marketing, sales, product development and other data and plans which it would be
impracticable for the Company to effectively protect and preserve in the absence
of this Section 5 and the disclosure or misappropriation of which could
materially adversely affect the Company. Accordingly, the Executive agrees:
5.1.1 except in the course of performing the Executive's duties
provided for in Section 1.1, not at any time, whether during or after the
Executive's employment with the Company, to divulge to any other entity or
person any confidential information acquired by the Executive concerning the
Company's or its affiliates' financial affairs or business processes or methods
or their research, development or marketing programs or plans, any other of its
or their trade secrets, any information regarding personal matters of any
directors, officers, employees or agents of the Company or its affiliates or
their respective family members, or any information concerning the circumstances
of the Executive's employment and any termination of the Executive's employment
with the Company or any information regarding discussions related to any
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of the foregoing. The foregoing prohibitions shall include, without limitation,
directly or indirectly publishing (or causing, participating in, assisting or
providing any statement, opinion or information in connection with the
publication of) any diary, memoir, letter, story, photograph, interview,
article, essay, account or description (whether fictionalized or not) concerning
any of the foregoing, publication being deemed to include any presentation or
reproduction of any written, verbal or visual material in any communication
medium, including any book, magazine, newspaper, theatrical production or movie,
or television or radio programming or commercial. In the event that the
Executive is requested or required to make disclosure of information subject to
this Section 5.1.1 under any court order, subpoena or other judicial process,
the Executive will promptly notify RCPC, take all reasonable steps requested by
RCPC to defend against the compulsory disclosure and permit RCPC to control with
counsel of its choice any proceeding relating to the compulsory disclosure. The
Executive acknowledges that all information the disclosure of which is
prohibited by this section is of a confidential and proprietary character and of
great value to the Company.
5.1.2 to deliver promptly to the Company on termination of the
Executive's employment with the Company, or at any time that RCPC may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints
and other documents (and all copies thereof) relating to the Company's business
and all property associated therewith, which the Executive may then possess or
have under the Executive's control.
5.2 In consideration of RCPC's covenant in Section 4.4, the Executive
agrees (i) in all respects fully to comply with the terms of the Employee
Agreement as to Confidentiality and Non-Competition referred to in the Revlon
Executive Severance Policy (the "Non-Competition Agreement"), whether or not the
Executive is a signatory thereof, with the same effect as if the same were set
forth herein in full, and (ii) in the event that the Executive shall terminate
the Executive's employment otherwise than as provided in Section 4.4, the
Executive shall comply with the restrictions set forth in paragraph 9(e) of the
Non-Competition Agreement through the earliest date on which the Term would have
expired pursuant to Section 2.1, subject only to the Company continuing to make
payments equal to the Executive's Base Salary during such period,
notwithstanding the limitation otherwise applicable under paragraph 9(d) thereof
or any other provision of the Non-Competition Agreement.
5.3 If the Executive commits a breach of any of the provisions of
Sections 5.1 or 5.2 hereof, RCPC shall have the following rights and remedies:
5.3.1 the right and remedy to immediately terminate all further
payments and benefits provided for in this Agreement, except as may otherwise be
required by law in the case of qualified benefit plans,
5.3.2 the right and remedy to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such
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breach will cause irreparable injury to the Company and that money damages and
disgorgement of profits will not provide an adequate remedy to the Company, and,
if the Executive attempts or threatens to commit a breach of any of the
provisions of Sections 5.1 or 5.2, the right and remedy to be granted a
preliminary and permanent injunction in any court having equity jurisdiction
against the Executive committing the attempted or threatened breach (it being
agreed that each of the rights and remedies enumerated above shall be
independent of the others and shall be severally enforceable, and that all of
such rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to RCPC under law or in equity), and
5.3.3 the right and remedy to require the Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits (collectively "Benefits") derived or received by the Executive
as the result of any transactions constituting a breach of any of the provisions
of Sections 5.1 or 5.2 hereof, and the Executive hereby agrees to account for
and pay over such Benefits as directed by RCPC.
5.4 If any of the covenants contained in Sections 5.1, 5.2 or 5.3, or
any part thereof, hereafter are construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions.
5.5 If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, are held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or area of
such provision so as to be enforceable to the maximum extent permitted by
applicable law and, in its reduced form, said provision shall then be
enforceable.
5.6 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 5.1, 5.2 and 5.3 upon the courts of
any state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect RCPC's right to the relief provided above in the courts of any other
states within the geographical scope of such covenants as to breaches of such
covenants in such other respective jurisdictions, the above covenants as they
relate to each state being for this purpose severable into diverse and
independent covenants.
5.7 Any termination of the Term or the Executive's employment shall
have no effect on the continuing operation of this Section 5.
6. Inventions and Patents.
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6.1 The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during the Term shall belong to the Company,
provided that such Inventions grew out of the Executive's work with the Company
or any of its subsidiaries or affiliates, are related in any manner to the
business (commercial or experimental) of the Company or any of its subsidiaries
or affiliates or are conceived or made on the Company's time or with the use of
the Company's facilities or materials. The Executive shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of the Executive's
inventorship.
6.2 If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Executive within two
years after the termination of the Executive's employment with the Company, it
is to be presumed that the Invention was conceived or made during the Term.
6.3 The Executive agrees that the Executive will not assert any rights
to any Invention as having been made or acquired by the Executive prior to the
date of this Agreement, except for Inventions, if any, disclosed to the Company
in writing prior to the date hereof.
7. Intellectual Property.
Notwithstanding and without limitation of Section 6, the Company shall be
the sole owner of all the products and proceeds of the Executive's services
hereunder, including, but not limited to, all materials, ideas, concepts,
formats, suggestions, developments, arrangements, packages, programs and other
intellectual properties that the Executive may acquire, obtain, develop or
create in connection with or during the Term, free and clear of any claims by
the Executive (or anyone claiming under the Executive) of any kind or character
whatsoever (other than the Executive's right to receive payments hereunder). The
Executive shall, at the request of RCPC, execute such assignments, certificates
or other instruments as RCPC may from time to time deem necessary or desirable
to evidence, establish, maintain, perfect, protect, enforce or defend its right,
title or interest in or to any such properties.
8. Indemnification.
RCPC will indemnify the Executive, to the maximum extent permitted by
applicable law, against all costs, charges and expenses incurred or sustained by
the Executive in connection with any action, suit or proceeding to which the
Executive may be made a party, brought by any shareholder of the Company
directly or derivatively or by any third party by reason of any act or omission
of the Executive as an officer, director or employee of the Company or of any
subsidiary or affiliate of the Company.
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9. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by overnight courier or mailed
first class, postage prepaid, by registered or certified mail (notices mailed
shall be deemed to have been given on the date mailed), as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
If to the Company, to:
Revlon Consumer Products Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Executive, to the Executive's principal residence as reflected
in the records of the Company.
10. General.
10.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
between residents thereof and to be performed entirely in New York.
10.2 The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
10.3 This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
10.4 This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive, nor may the Executive pledge,
encumber or anticipate any payments or benefits due hereunder, by operation of
law or otherwise. RCPC may assign its rights, together with its obligations,
hereunder (i) to any affiliate or (ii) to a third party in connection with any
sale, transfer or other disposition of all or substantially all of any business
to which the Executive's services are then principally devoted, provided that no
assignment
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pursuant to clause (ii) shall relieve RCPC from its obligations hereunder to the
extent the same are not timely discharged by such assignee.
10.5 This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
10.6 This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Subsidiaries and Affiliates. As used herein, the term "subsidiary"
shall mean any corporation or other business entity controlled directly or
indirectly by the corporation or other business entity in question, and the term
"affiliate" shall mean and include any corporation or other business entity
directly or indirectly controlling, controlled by or under common control with
the corporation or other business entity in question.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and General Counsel
/s/ D. ▇▇▇▇ ▇▇▇▇▇
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D. ▇▇▇▇ ▇▇▇▇▇