Employment Agreement - Revlon Consumer Products Corp. and M. Katherine Dwyer
EMPLOYMENT AGREEMENT, dated as of January 1, 1998, between REVLON
CONSUMER PRODUCTS CORPORATION, a Delaware corporation (the 'Company'), and M.
KATHERINE DWYER (the 'Executive').
The Company wishes to continue the employment of the Executive, and the
Executive wishes to accept such continued employment, on the terms and
conditions set forth in this Agreement.
Accordingly, the Company and the Executive hereby agree as follows:
Employment, Duties and Acceptance.
1.1 Employment, Duties. The Company hereby employs the Executive for
the Term (as defined in Section 2.1), to render exclusive and full-time
services to the Company as head of the Company's United States consumer
products business or in such other executive position of at least an equivalent
level consistent with the Executive's business experience and background as may
be assigned to the Executive by the Chief Executive Officer of the Company, and
to perform such other duties consistent with such position (including service
as a director or officer of any affiliate of the Company, if elected) as may be
assigned to the Executive by the Chief Executive Officer of the Company. The
Executive's title shall be President, Revlon Consumer Products U.S.A. 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 President of the
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 the Company 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
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 as of the date hereof (the 'Effective
Date') and shall end on such date as is provided pursuant to Section 2.2.
2.2 End of Term Provisions. At any time on or after the fourth
anniversary of the Effective Date the Company shall have the right to give
written notice of non-renewal of the Term. In the vent the Company gives such
notice of non-renewal, the Term automatically shall be extended so that it
needs twelve months after the last day of the month in which the Company gives
such notice. If the Company shall not theretofore have given such notice, from
and after the fifth anniversary of the Effective Date unless and until the
Company 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 the Company, the Term automatically shall be extended so that it ends
twelve months after the last day of the month in which the Company gives such
notice. Non-extension of the Term shall not be deemed to be a breach of this
Agreement by the Company 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 Plan as in
effect on the date of this Agreement, other than the provision in Paragraph
IIIC(ii) establishing a limit of six months of payments, which shall not apply
to the Executive, upon the executive's compliance with the terms thereof.
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, the Company agrees to pay the Executive during the Term a
base salary, payable semi-monthly in arrears, at the annual rate of not less
than $875,000 during the period from the Effective Date through December 31,
1998, said base salary to be increased as of January 1 of each calendar year
during the Term, commencing January 1, 1999, by not less than $75,000 (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 the Company, in its sole discretion, from
time to time determines to increase the Base Salary in an amount greater than
above provided, such increased amount shall, from and after the effective date
of the increase, constitute 'Base Salary' for purposes of all subsequent
increases pursuant to this Section 3.1.
3.2 Bonus. In addition to the amounts to be paid to the Executive
pursuant to Section 3.1, during the Term:
(i) The Executive shall receive a maximum annual performance
incentive bonus with respect to each year commencing with calendar year 1997 of
100% of the Executive's Base Salary at the rate in effect during the calendar
year in which bonus is earned (with a target bonus equal to 100% of such Base
Salary), based upon the degree of
achievement of objectives set annually not later than February 28 of such year
in accordance with the Revlon Executive Bonus Plan or by the Compensation
Committee of the Board of Directors of the Company, as the case may be. 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.
(ii) The Executive shall receive within 10 days after commencement of
the Term a lump sum bonus in the amount of $300,000.
(iii) The Executive shall receive, at the time executive bonuses are
paid generally with respect to calendar year 1997, a lump sum bonus equal to
60% of the bonus, if any, payable with respect to calendar year 1997 pursuant
to section 3.1(i) above.
3.3 Stock Options. The Executive shall be recommended to the
Compensation Committee or other committee of the Board administering the 1996
Revlon 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, commencing in 1998, each such option to cover a minimum of 75,000 shares
of Revlon common stock, to have a term of 10 years, to have an option exercise
price equal to the market price of the Revlon common stock on the date of
grant, and otherwise to be on terms (other than number of shares covered)
substantially the same as other senior executives of the Company generally.
3.4 Business Expenses. The Company 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. Arrangements heretofore in effect with respect to wardrobe
allowances were terminated on the Effective Date.
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
the vacation policy of the Company 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, 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
shall be entitled to the use of an assigned Company-provided chauffeured
automobile as required for business purposes.
(ii) During the Term, the Company agrees to make available to the
Executive additional term life insurance coverage with a face amount 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 the Company 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).
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, 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 (including
supplemental coverage under Section 3.6) and for the Executive and her 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, the Company may at any time by written
notice to the Executive terminate the Term and, upon such termination, the
Executive shall be entitled to receive no further amounts or benefits
hereunder, except as required by law.
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 Company's Board
of Directors) to fully implement the Company's recommendation pursuant to
Section 3.3, the Executive shall be entitled to terminate the Term upon 60
days' prior written notice to the Company. In addition, the Company shall be
entitled to terminate the Term at any time and without prior notice otherwise
than pursuant to the provisions of Section 2.2, 4.2 or 4.3. Upon such
termination by the Executive, or in the event the Company so terminates the
Term otherwise than pursuant to the provisions of Section 2.2, 4.2 or 4.3, the
Company's sole obligation shall be (at the Executive's election by written
notice within 10 days after such termination) either (i) to make payments in
the amounts prescribed by Section 3.1 (less amounts required by law to be
withheld) and to continue the Executive's participation in the group life
insurance and in the basic and executive medical plans of the Company, in each
case through the date on which the Term would have expired pursuant to Section
2.2 if the Company had given notice of non-renewal on the date of termination
of employment, provided that any compensation earned by the Executive from
other employment or a consultancy during such period shall reduce the payments
provided for herein, and 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, 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 the Company and the Executive become
involved in any action, suit or proceeding relating to the alleged breach of
this Agreement by the Company 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, the Company 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;
5.1 The Executive acknowledges that the Executive's work for the
Company will bring the Executive into close contact with many confidential
affairs of the Company not readily available to the public, 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 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 the
Company, take all reasonable steps requested by the Company to defend against
the compulsory disclosure and permit the Company 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
5.1.2 To deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any time the Company 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 The Executive shall in all respects fully comply with the terms
of the Employee Agreement as to Confidentiality and Non-Competition referred to
in such Executive Severance Plan (whether or not the Executive is a signatory
thereof) with the same effect as of the same were set forth herein in full.
5.3 If the Executive commits a breach of any of the provisions of
Sections 5.1 or 5.2 hereof, the Company shall have the following rights and
5.3.1 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 or threatened 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
5.3.2 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 to the Company.
In addition, if the Executive attempts or threatens to commit a breach of any
of the provisions of Sections 5.1 or 5.2, the Executive consents to the Company
obtaining a preliminary and a permanent injunction in any court having equity
jurisdiction against the Executive committing the attempted or threatened
breach. Each of the rights and remedies enumerated above shall be independent
of the other, and shall be severally enforceable, and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
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 the Company'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
5.7 Any termination of the Term or this Agreement shall have no
effect on the continuing operation of this Section 5.
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
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 by 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 the Company, execute such assignments,
certificates or other instruments as the Company 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.
The Company 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.
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, New York 10022
Attention: Wade H. Nichols III
Senior Vice President and
If to the Executive, to her principal residence as reflected in the
records of the Company.
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. The
parties hereby consent and submit to the exclusive jurisdiction of the state
and federal courts sitting in Manhattan, New York, for the adjudication of any
disputes arising hereunder.
10.2 The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
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, including without limitation the
Employment Agreement among the parties dated as of January 1, 1996. 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. The Company may assign its
rights, together with its obligations, hereunder (i) to any affiliate or (ii)
to third parties in connection with any sale, transfer or other disposition of
all or substantially all of any business or assets in which the Executive's
services are then substantially involved; in any event the obligations of the
Company hereunder shall be binding on its successors or assigns, whether by
merger, consolidation or acquisition of all or substantially all of such
business or assets.
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.
11.1 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/ George Fellows
By: /s/ M. Katherine Dwyer
M. Katherine Dwyer