November 2, 1999
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT effective as of November 2, 1999, between REVLON
CONSUMER PRODUCTS CORPORATION, a Delaware corporation ('RCPC' and, together with
its parent Revlon, Inc. and its subsidiaries the 'Company'), and Jeffrey M.
Nugent (the 'Executive').
RCPC wishes to employ the Executive with the Company, and the Executive
wishes to accept employment with the Company, on the terms and conditions set
forth in this Agreement.
Accordingly, RCPC and the Executive hereby agree as follows:
1. 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 capacity of chief executive officer of Revlon, Inc. and
to perform such other duties consistent with such position (including
service as a director or officer of any affiliate of Revlon, Inc. if
elected) as may be assigned by the Board of Directors of Revlon, Inc. The
Executive's title shall be President and Chief Executive Officer, or such
other titles of at least equivalent level consistent with the Executive's
duties from time to time as may be assigned to the Executive by the Board
of Directors of Revlon, Inc. RCPC agrees to use its best efforts to cause
the Executive to be elected to the Board of Directors of Revlon, Inc. and
of RCPC, so that the Executive may serve as a member of both Boards
throughout the Term.
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 Revlon, Inc. 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 December 5, 1999 (the 'Effective
Date') and shall end on such date as provided pursuant to Section 2.2.
2.2 End-of-Term Provisions. At any time on or after December 31, 2002
RCPC shall have the right to give written notice of non-renewal of the
Term. In the event RCPC gives such notice of non-renewal, the Term
automatically shall be extended so that it ends twenty-four months after
the last day of the month in which RCPC gives such notice. If RCPC shall
not theretofore have given such notice, from and after December 31, 2002
unless and until RCPC gives written notice of non-renewal as provided in
this Section 2.2, the Term automatically shall be extended day-by-day; upon
the giving of such notice by RCPC, the Term automatically shall be extended
so that it ends twenty-four months after the last day of the month in which
RCPC gives such notice. Non-extension of the Term shall not be deemed to be
a breach of this Agreement by RCPC for purposes of Section 4.4, provided,
however, that 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 Policy as in effect on the date of this Agreement upon the
Executive's compliance with the terms thereof, and the Executive shall be
deemed to be an employee at will.
2.3 Special Curtailment. The Term shall end earlier than the date
provided in Section 2.2, 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, RCPC agrees to pay the Executive during the Term a base
salary, payable biweekly in arrears, at the annual rate of not less than
$1,000,000 during 1999 and during the year ending December 31, 2000, and
not less than $1,150,000 during the year ending December 31, 2001, and not
less than $1,300,000 during the year ending December 31, 2002 (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.
3.2 Bonus. In addition to the amounts to be paid to the Executive
pursuant to Section 3.1, the Executive shall receive an annual bonus of
100% of the Executive's Base Salary at the rate in effect during the
calendar year in which the bonus is earned, based upon achievement of 100%
of the objectives set annually not later than March 31 of such year by the
Compensation Committee of the Board of Directors of Revlon, Inc. in its
sole discretion (but after consultation with the Executive); provided, that
the annual bonus amount shall be 150% of the Executive's Base Salary if the
achievement is 120% (or more) of such objectives; and provided, further,
that no bonus or bonus opportunity shall be required for 1999, and the
Executive's annual bonus for the year ending December 31, 2000 shall not be
less than $500,000, regardless of the attainment of such objectives. In the
event that the Executive's employment shall terminate otherwise than as of
a calendar year end, the Executive's bonus with respect to the calendar
year in which employment terminates shall be prorated for the actual number
of days of employment during such year, and such bonus, if any, shall be
payable on the date that executive bonuses are paid generally, whether or
not the Executive remains employed on such date.
3.3 Stock Options. The Executive shall be recommended to the
Compensation Committee or other committee of the Board administering the
Revlon Inc. Amended and Restated 1996 Stock Plan or any plan that may
replace it, as from time to time in effect, to receive on December 5, 1999
an option to purchase 300,000 shares of Revlon common stock, on December 5,
2000, an option to purchase 100,000 shares of Revlon common stock, and on
December 5, 2001, an option to purchase 100,000 shares of Revlon common
stock, each with a term of 10 years from the date of grant and an option
exercise price equal to the market price of Revlon common stock on the date
of grant and otherwise on terms (other than number of shares covered)
substantially the same as other senior executives of the Company generally.
Subject to the Executive's continued employment with the Company, the
options so recommended shall vest and become exercisable as follows:
options granted on December 5, 1999 shall become 100% exercisable on
December 5, 2002; options granted on December 5, 2000 shall become 25%
exercisable on each December 5th thereafter; and options granted on
December 5, 2001 shall become 25% exercisable on each December 5th
thereafter. Notwithstanding the foregoing, if prior to December 5, 2002 the
Executive shall terminate his employment pursuant to Section 4.4 or the
Company shall terminate the Executive's employment other than for Cause
pursuant to Section 4.3, a portion of the options granted on December 5,
1999 shall be exercisable for a period of one year following such
termination of employment, such portion to be determined as follows: 33%
if such termination occurs on or after December 5, 2000 and before December
5, 2001; and 66% if on or after December 5, 2001 and before December 5,
2002. In addition, the Executive shall be recommended to the Compensation
Committee or other committee of the Board administering the Revlon Inc.
Amended and Restated 1996 Stock Plan or any plan that may replace it, as
from time to time in effect, to receive, under that Plan or otherwise, an
award intended to reasonably recognize any enhanced value that the
recommended December 5, 1999 option grant would enjoy if it were priced on
November 1 rather than December 5, 1999; which recommended award may, but
need not, take the form of increasing the number of options otherwise
recommended to be granted on December 5, 1999; and in all events, such
recommended additional award, whatever its form, may be made subject to
restrictions on vesting and exercisability (if applicable) with purpose
similar to the restrictions pertaining to the contemplated December 5, 1999
option grant, and may be designed to minimize accounting impact and
maximize tax deductibility.
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 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 of four weeks taken in accordance
with applicable vacation policy as in effect from time to time.
3.6 Fringe Benefits.
(i) During the Term, the Executive shall be entitled to
participate in those qualified and non-qualified defined benefit,
defined contribution, group insurance, medical, dental, disability and
other benefit plans of the Company as from time to time in effect made
available to senior executives of the Company generally and in the
Company's Executive Medical Plan providing for reimbursement of
medical and dental benefits not payable under plans generally
available. In addition, in accordance with the directives of the
Compensation Committee of the Board of Directors, during the Term the
Executive shall be assigned the use of a Company-provided chauffeured
automobile (a late model top of the line BMW or equivalent vehicle)
during the business week for personal and business use and at other
times as required for business purposes. Further, during the Term the
Executive shall be entitled to the use of a Company-provided
automobile in accordance with the Company's executive automobile
policy and guidelines as from time to time in effect, and the
Executive shall be reimbursed for the initiation fees, dues,
assessments and like fees for membership in one city club of the
Executive's choice.
(ii) During the Term, RCPC agrees to make available to the
Executive additional life insurance coverage with a death benefit of
three times the Executive's Base Salary from time to time, subject to
the insurer's satisfaction with the results of any required medical
examination, to which the Executive hereby agrees to submit, and shall
reimburse the Executive for the premium expense related thereto and
gross the Executive up for the tax payable with respect to such
reimbursement. Such coverage shall be provided pursuant to the
Company's optional supplemental term insurance program, if available,
or if not, the Executive may select a plan of the Executive's choice
and may designate the beneficiary of such plan.
(iii) During the Term, RCPC shall maintain an individual policy
of disability insurance, naming the Executive as the insured and the
Executive or a designee as the beneficiary, with a benefit equal to
(A) fifty percent of the sum of the Executive's Base Salary in effect
on the date of disability plus the Executive's most recent annual
bonus pursuant to Section 3.2 less (B) the long-term disability
benefit payable under the Company's group disability program as in
effect from time to time (irrespective of whether the Executive has
elected to participate in such long-term disability program).
(iv) On the Effective Date, or at such time or times thereafter
as may be agreed upon by RCPC and the Executive, RCPC shall loan to
the Executive up to $500,000 to assist him in purchasing a new
principal residence in the New York metropolitan area and/or a
Manhattan apartment and to defray unreimbursed expenses associated
with the relocation of his household to commence employment hereunder.
Such loan shall be due and payable, together with interest at the
applicable federal rate, upon the earlier of (x) termination of the
Executive's employment for any reason or (y) five years from the
making of the first portion of any such loan. Such loan shall be
evidenced by a note secured by a mortgage on the purchased premises
(or by such other collateral as may be acceptable to RCPC), second
only to any mortgage in favor of the seller of such premises or any
bank making a loan for the purchase thereof.
(v) During the Term, RCPC shall pay to the Executive as
additional compensation on a monthly basis an amount equal to the sum
of (A) the payment actually payable by the Executive for the preceding
month in respect of (i) regularly scheduled interest and amortization
of principal on any bank loan that the Executive shall obtain to
purchase a principal residence in the New York metropolitan area
and/or a Manhattan apartment (calculated on the basis of a standard
fixed payment commercial mortgage table with interest adjustable seven
years after initial borrowing and principal amortized over 30 years
after initial borrowing, but excluding any prepayment of principal)
(the 'Mortgage Loan') and (ii) any loan origination 'points' with
respect to the closing of the Mortgage Loan, in each case limited to
$1,500,000 principal amount of Mortgage Loan (together, the 'Home Loan
Payments') plus (B) the amount of any increase in federal, state and
local income taxes actually payable by the Executive as a result of
RCPC's payment of the Home Loan Payments and amounts payable under
this clause (B); provided, however, that if during or after the Term
(x) the Executive terminates his employment otherwise than for reasons
constituting 'Good Reason' as defined in Section 4.4 or (y) the
Executive materially breaches any of his obligations hereunder
(including under Sections 5, 6 and 7) or (z) RCPC terminates the
Executive's employment for reasons constituting 'Cause' as defined in
Section 4.3, the Executive shall remit and repay to RCPC an amount
equal to (a) the total amount of interest that would have been paid by
RCPC as Home Loan Payments if the Mortgage had borne interest at the
applicable federal rate from time to time, plus (b) the payments made
by RCPC pursuant to clause (B) above (plus interest thereon at the
applicable federal rate) with respect to the amount to be remitted by
the Executive pursuant to the foregoing clause (a).
(vi) In furtherance of the Executive's retirement benefit
expectations, and without limiting the Company's ability to modify, in
any way, any or all of its defined benefit plans, RCPC agrees to
guarantee to the Executive a minimum monthly pension as set forth
below:
(a) Commencing with retirement on or after October 1, 2008,
RCPC shall pay or provide a monthly straight life annuity pension
amount of $41,667, reduced by the actuarial equivalent of all
benefits paid or payable (calculated on a straight life annuity
basis) to or in respect of the Executive under (i) the Revlon
Employees Retirement Plan, the Revlon Pension Equalization Plan,
and any predecessors or successors to either of them, (ii) all
other defined benefit retirement and defined contribution plans,
whether or not tax qualified, maintained at any time by RCPC,
Revlon, Inc., any past employer of the Executive, or the
affiliate of any of them, in all cases without regard to
whether the plan has previously terminated, is being currently
maintained or is established and maintained in the future. Such
offset for benefits under other plans shall be determined as of
the day this pension starts; shall not be subsequently adjusted
on account of any subsequent benefit accruals or change in
benefit amounts expected under such other plans, whether on
account of the Executive's death or otherwise; and shall
disregard benefits derived from employee contributions and from
employer matching contributions under any 401(k) plan. Only a
percentage (the 'Accrued Percentage') of the amount otherwise
payable pursuant to this Section 3.6(v)(a) shall be paid if the
Executive's employment shall terminate prior to October 1, 2008,
as follows: for termination prior to September 30, 2000, the
Accrued Percentage shall be 0%; for termination on or after
September 30, 2000 and prior to September 30, 2001, 11.1%; and
thereafter, 11.1% additional to accrue as of each September 30th
on which the Executive is still employed, with the result that
the benefit shall be 100% accrued on and after September 30,
2008.
(b) The Executive may elect to have the pension determined
pursuant to subsection (a) above paid as an actuarially
equivalent joint and 50% survivor annuity with his spouse as
beneficiary if she shall survive the Executive and be legally
married to the Executive at the time of his death. Such election
shall be made by the Executive not later than 90 days before the
pension benefit is to start and shall take effect only if the
Executive and his spouse are alive and married to each other on
the day the pension starts. If the Executive's spouse dies after
the pension starts and before the Executive, no adjustment shall
be made to the amount of annual pension payable to the Executive.
(c) If the Executive dies before October 1, 2008, a lifetime
pension shall be payable to the spouse, if any, to whom the
Executive was legally married on the date of his death,
commencing on October 1, 2008, in a monthly amount determined as
if the Executive had survived to that date and had then elected
to have his benefit paid as an actuarially equivalent joint and
50% survivor annuity with his spouse as beneficiary; provided,
that the amount otherwise determined in accordance with the
foregoing shall be multiplied by the Accrued Percentage
calculated pursuant to the last sentence of Section 3.6(v)(a) as
of the date of the Executive's death (or, if earlier, the date as
of which Executive's employment terminated), and only that
accrued amount shall be due to the surviving spouse.
(d) For purposes of determining actuarial equivalence, the
following assumptions shall be used: an interest rate equal to
the AA corporate bond long-term rate in effect on the first day
of the month preceding the month in which the benefit is to
start, the 1983 Group Annuity Mortality Table, and otherwise the
reasonable actuarial assumptions and methods selected by RCPC's
primary actuary.
(e) Notwithstanding any other provision of this Agreement,
no benefit shall be payable pursuant to this subsection 3.6(v),
and any
amounts then being paid shall cease and the Executive shall
immediately reimburse the Company for amounts theretofore paid,
in the event that (x) prior to January 1, 2003 the Executive
terminates his employment during the Term otherwise than as
provided in Section 4.4, (y) the Executive materially breaches
this Agreement (including Section 5, 6 or 7) or (z) RCPC
terminates the Executive's employment (under this Agreement or
otherwise) for 'Cause' as set forth in Section 4.3 of this
Agreement.
(f) Payments pursuant to this subsection 3.6(v) shall be
made quarterly or at such more frequent intervals as RCPC may
elect. RCPC's obligation under this subsection 3.6(v) shall be an
unsecured, unfunded and unaccrued contingent general obligation
of RCPC to be satisfied from its unsegregated general funds,
provided that RCPC shall have the right, if it so elects, to
defease its obligation hereunder by the purchase and delivery to
the Executive of an annuity on his life in the amount provided
for above or to fund its obligation hereunder through the
purchase of insurance or other instruments, and the Executive
agrees to comply with the reasonable requests of RCPC should RCPC
elect to do so, including by submitting to medical examination
required in connection with the purchase of any such insurance.
3.7 Special Bonus. As an additional inducement to the Executive to
enter into and remain in RCPC's employ, RCPC agrees to pay to the Executive
a special bonus on January 15 of the year next following the year in which
his employment terminates, in an amount equal to the product of multiplying
(A) $1,500,000 less the amount of Home Loan Payments made by RCPC in
respect of the principal of the Mortgage, by (B) the following applicable
percentages: for termination in 2000, 0%; for termination in 2001, 20%; for
termination in 2002, 40%; for termination in 2003, 60%; for termination in
2004, 80%; and for termination in 2005 or thereafter, 100%; provided,
however, that if during or after the Term (x) the Executive terminates his
employment otherwise than for reasons constituting 'Good Reason' as defined
in Section 4.4 or (y) the Executive materially breaches any of his
obligations hereunder (including under Sections 5, 6 and 7) or (z) RCPC
terminates the Executive's employment for reasons constituting 'Cause' as
defined in Section 4.3, no bonus shall be payable under this Section 3.7
and (in the case of a material breach of Section 5, 6 or 7 following
termination of employment) any bonus theretofore paid under this Section
3.7 shall be forfeited and repaid to RCPC.
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 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, the Company 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 that the Executive shall be
entitled to receive until the first to occur of (x) the Executive ceasing
to be disabled or (y) the Executive's attaining the age of 65, continued
coverage for the Executive under the Company paid group life insurance plan
and for the Executive and his spouse and children, if any, under the
Company's group medical (including executive medical) plan, to the extent
permitted by such plans and to the extent such benefits continue to be
provided to the Company's senior executives generally.
4.3 Cause. In the event of 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 subsidiaries or 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 by the Company materially
prejudicial to the best interests of the Company, 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. The Executive
shall not be deemed to have been terminated for Cause unless (i) reasonable
notice has been delivered to him setting forth the reasons for the
Company's intention to terminate for Cause, and (ii) a period of ten (10)
days has elapsed since delivery of such notice during which Executive was
afforded an opportunity to cure, if capable of remedy, the reasons for the
Company's intention to terminate for Cause.
4.4 Company Breach; Other Termination. In the event of the breach of
any material provision of this Agreement by the Company or the failure of
the Compensation Committee (or other appropriate Committee of the Board of
Directors of Revlon, Inc.) to fully implement RCPC's recommendations
pursuant to Section 3.3, the Executive shall be entitled to terminate the
Executive's employment and the Term upon 60 days' prior written notice to
the Company. Such termination of the Executive's employment and the Term
shall be deemed a termination for 'Good Reason'. 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 Sections 3.6
and 3.7) shall be (at the Executive's election by written notice within 10
days after such termination), for RCPC either:
(i) to make payments in lieu of Base Salary in the amounts
prescribed by Section 3.1 and to continue the Executive's
participation in the benefits provided for in subsections (i),
(ii) and (iii) of Section 3.6 (except, in the case of subsection
(i), the use of a chauffeur-driven car) (in each case less
amounts required by law to be withheld) through the date on which
the Term would have expired pursuant to Section 2.2 if RCPC had
given notice of non-renewal on or as promptly as permitted by
Section 2.2 after the date of termination, provided that (1) such
benefit continuation is subject to the terms of such plans, (2)
group life insurance continuation is subject to a limit of two
years pursuant to the terms thereof, (3) 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, (4) 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 Revlon Executive Severance
Policy as in effect on the date of this Agreement and (5) any
compensation earned by the Executive from other employment or
consultancy during such period shall reduce the payments provided
for herein, 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 (except that the provision
in Paragraph IIIC(ii) establishing a limit of six months of
payments shall not be applicable to the Executive) upon the
Executive's compliance with the terms thereof.
4.5 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 place 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 before, 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 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
shall (i) in all respects fully to comply with the terms of the Employee
Agreement as to Confidentiality and Non-Competition referred to in 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 2.2
if RCPC had given notice of non-renewal on or as promptly as permitted by
Section 2.2 after the date of termination, 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
Section 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 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 Section 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 Section 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 Section 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 Section 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.
5.8 Pursuant to Sections 4.4 and 5.2, the Executive is subject to
certain non-competition covenants set forth in the Non-Competition
Agreement referred to in the Revlon Executive Severance Policy, which
covenants extend beyond the Executive's termination of employment. If prior
to January 1, 2003 the Executive shall terminate his employment pursuant to
Section 4.4. or the Company shall terminate the Executive's employment
other than for Cause pursuant to Section 4.3, then the restrictions on
entering competitive employment otherwise applicable shall not survive more
than 12 months following any such termination of employment (but all other
covenants shall remain applicable in accordance with their terms).
6. Inventions and Patents.
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 limiting the provisions 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.
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
625 Madison Avenue
New York, NY 10022
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 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 he 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: WADE H. NICHOLS
----------------------------
/s/ JEFFREY M. NUGENT
--------------------------------
Jeffrey M. Nugent, the Executive
Employment Agreement - Revlon Consumer Products Corp. and Jeffrey M. Nugent
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