EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, amended and restated as of May 10, 1999,
effective as of January 1, 1998, between REVLON CONSUMER PRODUCTS CORPORATION,
a Delaware corporation ("RCPC" and, together with its parent Revlon, Inc. and
its subsidiaries, the "Company"), and XXXX X. XXXXXXX (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 as chief legal officer of the Revlon group of companies 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 Revlon, Inc., 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 Revlon, Inc. The Executive's title
shall be Executive Vice President and General Counsel, Revlon, Inc. 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 Chief Executive
Officer of Revlon, Inc.
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 as of the date hereof (the "Effective
Date") and shall end on February 28, 2003. During any period that the
Executive's employment shall continue following expiration of the Term, (i) 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 III C(ii) thereof establishing
a limit of six months of payments, which shall not apply to the Executive),
upon the Executive's compliance with the terms thereof, (ii) RCPC shall treat a
voluntary termination of employment following the Term or a termination
pursuant to Section 4.4 during the Term as a voluntary retirement with the
Company's consent for all purposes of the Revlon, Inc. Second Amended and
Restated 1996 Stock Plan (the "Stock Plan") and the retirement and other plans
of the Company in which the Executive shall then participate (including
post-retirement life insurance referred to in Section 3.6(iii) below), and
(iii) the Executive shall be deemed to be an employee at will; provided that as
a condition for the promises in clauses (i) and (ii) above and in Section
3.6(iii) below, the Executive shall provide, upon termination of employment, a
release in form and substance comparable to the releases currently used under
the Executive Severance Plan.
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, RCPC agrees to pay the Executive during the Term a
base salary, payable bi-weekly in arrears, at the annual rate of not less than
$600,000 (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 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 all purposes of this Agreement.
3.2 Bonus. In addition to the amounts to be paid to the
Executive pursuant to Section 3.1, during the Term the Executive shall receive
a maximum annual performance incentive bonus with respect to each year
commencing with calendar year 1998 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 75% 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 Revlon, Inc., as the case may be.
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. 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 agreement 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 agreement 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.
3.3 Stock Options. The Executive shall be recommended to the
Compensation Committee or other committee of the Board administering the 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 40,000 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,
including Plan provisions respecting early termination of the term of
outstanding grants, provided that if the Term shall end 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.
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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 the Revlon Executive Medical and Dental Programs and 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 having a value not less than that of
the automobile currently assigned to the Executive (adjusted as appropriate for
inflation), and shall be entitled to be reimbursed for the dues, assessments
and other like charges of membership in the University Club or other club of
like cost.
(ii) During the Term, RCPC 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 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), and upon the
Executive's retirement in accordance with the requirements of the Company's
former supplemental employees' retirement plan, in which the Executive was a
participant, the Company shall provide to the Executive a death benefit equal
to two times the Executive's final Base Salary as provided for in such plan
(which benefit may be provided from insurance or from the Company's
unsegregated general funds, as the Company may elect).
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.
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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 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 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 with 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 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 RCPC or the failure of
the Compensation Committee (or other appropriate Committee of the Board of
Directors) to fully implement RCPC'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, 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 the Company 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
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
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event within 30 days after such notice. In addition, RCPC shall be entitled to
terminate the Term and the Executives'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 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 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")
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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 as amended hereby (and not as a result
of this Agreement as theretofore in effect or the Executive's participation in
any incentive, benefit or severance plan or arrangement applicable to the
Executive without regard to this Agreement) and (ii) 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 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.
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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 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.
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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 end of the Term provided for in
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 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.
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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.
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.
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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.
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):
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If to the Company, to:
Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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.
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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/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
/s/ XXXX X. XXXXXXX
-------------------
Xxxx X. Xxxxxxx
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