This AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (this
“Agreement”), dated as of May 1, 2009, is entered
into by and between REVLON CONSUMER PRODUCTS CORPORATION, a
Delaware corporation (“RCPC” and, together with its
parent Revlon, Inc. (“Revlon”) and its subsidiaries,
the “Company”), and Alan T. Ennis (the
“Executive”).
Whereas, RCPC
wishes to continue to employ the Executive and the Executive wishes
to accept continued employment with the Company on the terms and
conditions set forth in this Agreement.
Now, therefore,
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 President and
Chief Executive Officer of Revlon and RCPC, reporting to the Board
of Directors of each of Revlon and RCPC, and to perform such other
duties and responsibilities consistent with such position
(including continuing to serve as a director of Revlon and RCPC and
additional service as a director or officer of any subsidiary of
the Company, if so elected), as may be assigned to the Executive
from time to time by Revlon’s Board of Directors. RCPC agrees
to use its best efforts to cause the Executive to continue to be
elected to the Board of Directors of Revlon 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 RCPC in the
New York City metropolitan area, subject to reasonable travel
requirements consistent with the nature of the Executive’s
duties from time to time on behalf of the Company.
1.4
Performance Warranty . As an inducement for the Company to
enter into this Agreement, the Executive hereby represents that the
Executive is not a party to any contract, agreement or
understanding which prevents, prohibits or limits the Executive in
any way from entering into and fully performing the
Executive’s obligations under this Agreement and any duties
and responsibilities that may be assigned to the Executive
hereunder.
2. Term
of Employment; Certain Post-Term Benefits .
2.1
The Term . The Term of the Executive’s employment
under this Agreement (the “Term”) shall commence on the
date hereof (the “Effective Date”) and shall end
twenty-four (24) months after RCPC provides to the Executive a
notice of non-renewal, unless in either case sooner terminated
pursuant to Section 4. During any period that the
Executive’s employment shall continue following the end of
the Term, the Executive shall be deemed an employee at will,
provided, however, that the Executive shall be eligible for
severance on the terms and subject to the conditions of the Revlon
Executive Severance Pay Plan as in effect from time to time, or
such plan or plans, if any, as may succeed it (the “Executive
Severance Plan”), provided that the severance and benefit
continuation period for the Executive under the Executive Severance
Plan shall be not less than 24 months, subject to the terms
and conditions of such 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 . The Company agrees to pay the Executive during the
Term a base salary, payable bi-weekly, at the annual rate of not
less than $875,000 (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. The Executive will be considered for merit increases
in connection with the Executive’s performance evaluations,
which are performed in accordance with the Company’s salary
administration policies and procedures. In the event that RCPC, in
its sole discretion, from time to time determines to increase the
Base Salary, such increased amount shall, from and after the
effective date of the increase, constitute “Base
Salary” for purposes of this Agreement and shall not
thereafter be decreased.
3.2
Bonus . The Executive shall be eligible to participate in
the Revlon Executive Bonus Plan as in effect from time to time, or
such plan or plans, if any, as may succeed it (the “Bonus
Plan”), with maximum bonus eligibility of 150% of Base Salary
for significantly over-achieving performance objectives set by the
Compensation Committee or its designee and target bonus eligibility
of 100% of Base Salary for achieving performance objectives set by
the Compensation Committee or its designee, subject to the terms
and conditions of such Bonus Plan. In the event that the
Executive’s employment shall terminate pursuant to
Section 4.4 during any calendar year, the Executive’s
bonus with respect to the year during which such termination occurs
shall be prorated for the actual number of days of active
employment during such year and such bonus as prorated shall be
payable (i) if and to the extent bonuses are payable to
executives under the Bonus Plan for that year based upon
achievement of the objectives set for that year and not including
any discretionary bonus amounts which may otherwise be payable to
other executives despite non-achievement of bonus objectives for
such year and (ii) on the date bonuses would otherwise be
payable to executives under the Bonus Plan. Notwithstanding
anything herein or contained in the Bonus Plan to the contrary, in
the event that the Executive’s employment shall terminate
pursuant to Section 4.4 during any calendar year, the
Executive shall be entitled to receive the Executive’s bonus
(if not already paid) with respect to the year
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immediately
preceding the year of termination (if bonuses with respect to such
year are payable to other executives based upon achievement of
bonus objectives and not based upon discretionary amounts which may
be paid to other executives despite non-achievement of bonus
objectives) as and when such bonuses would otherwise be payable to
executives under the Bonus Plan, despite the fact that Executive
may not be actively employed on such date of payment.
3.3
Stock-Based Compensation . The Executive shall be eligible
for recommendation to the Compensation Committee or other committee
of the Board administering the Third Amended and Restated Revlon,
Inc. Stock Plan or any plan that may replace it, as from time to
time in effect, to receive an award of stock options, restricted
shares or other awards during the Term, at levels, on terms, and at
such times as are generally applicable to other senior executives
of the Executive’s level, in accordance with the
Company’s long-term stock incentive program as in effect from
time to time, provided that the Executive must be actively employed
on the date of such grant.
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 Revlon Travel and Entertainment Policy as in
effect from time to time, or such policy or policies, if any, as
may succeed it.
3.5
Vacation . During each year of the Term, the Executive shall
be entitled to a vacation period or periods in accordance with the
vacation policy of the Company as in effect from time to time, but
not less than four weeks.
3.6
Fringe Benefits . During the Term, the Executive shall be
entitled to participate in those qualified and non-qualified
defined benefit, defined contribution, group life insurance,
medical, dental, disability and other benefit plans and programs of
the Company as from time to time in effect (or their successors)
generally made available to other executives of the
Executive’s level and in such other plans and programs and in
such perquisites, as from time to time in effect, as may be
generally made available to senior executives of the Company of the
Executive’s level generally. Further, during the Term, the
Executive will be eligible (a) to participate in
Revlon’s Executive Financial Counseling and Tax Preparation
Program, as from time to time in effect, or such program or
programs, if any, as may succeed it, and (b) to receive a car
allowance at the rate of $15,000 per annum, under the car allowance
program as in effect from time to time, or such program or
programs, if any, as may succeed it.
3.7
Internal Revenue Code Section 409A . Section 409A
of the Code (as defined below) and/or its related rules and
regulations (“Section 409A”), imposes additional
taxes and interest on compensation or benefits deferred under
certain “nonqualified deferred compensation plans” (as
defined under the Code). These plans may include, among others,
nonqualified retirement plans, bonus plans, stock option plans,
employment agreements and severance agreements. The Company
reserves the right to provide compensation or benefits under any
such plan in amounts, at times and in a manner that minimizes
taxes, interest or penalties as a result of Section 409A,
including any required withholdings, and the Executive agrees to
cooperate with the Company in such actions. Specifically, and
without limitation of the previous sentence, if the Executive is a
“specified employee,” as such term is defined under
Section 409A
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(generally one
of the Company’s top 50 highest paid officers), to the extent
required under Section 409A, the Company will not make any
payments to the Executive under this Agreement upon a
“separation from service,” as such term is defined
under Section 409A, until six months after the
Executive’s date of separation from service or, if earlier,
the date of the Executive’s death. Upon expiration of the
six-month period, or, if earlier, the date of the Executive’s
death, the Company shall make a payment to the Executive (or his
beneficiary or estate, if applicable) equal to the sum of all
payments that would have been paid to the Executive from the date
of separation from service had the Executive not been a
“specified employee” through the end of the six month
period, and thereafter the Company will make all the payments at
the times specified in this Agreement or applicable policy, as the
case may be. In addition, the Company and the Executive agree that,
for purposes of this Agreement, termination of employment (or any
variation thereof) will satisfy all of the requirements of
“separation from service” as defined under
Section 409A. For purposes of this Agreement, the right to a
series of installment payments, such as salary continuation or
severance payments, shall be treated as the right to a series of
separate payments and shall not be treated as a right to a single
payment. For purposes of this Agreement, the term
“Code” shall mean the Internal Revenue Code of 1986, as
amended, including all final regulations promulgated thereunder,
and any reference to a particular section of the Code shall include
any provision that modifies, replaces or supersedes such
section.
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, other than (i) for accrued, but unpaid, Base Salary
as of such date and (ii) pursuant to life insurance provided
under Section 3.6.
4.2
Disability . If during the Term the Executive shall become
physically or mentally disabled, whether totally or partially, such
that the Executive is unable to perform the Executive’s
services hereunder for (i) a period of six consecutive months
or (ii) shorter periods aggregating six months during any
twelve month period, RCPC may at any time after the last day of the
six consecutive months of disability or the day on which the
shorter periods of disability shall have equaled an aggregate of
six months, by written notice to the Executive (but before the
Executive has returned to active service following such
disability), terminate the Term and no further amounts or benefits
shall be payable hereunder.
4.3
Cause . RCPC may at any time by written notice to the
Executive terminate the Term for “Cause” and, upon such
termination, the Executive shall be entitled to receive no further
amounts or benefits hereunder, except for accrued, but unpaid,
salary as of such date and as required by law. As used herein the
term “Cause” shall mean (a) gross neglect by the
Executive of the Executive’s duties hereunder,
(b) conviction of the Executive of any felony, conviction of
the Executive of any lesser crime or offense involving the property
of the Company or any of its affiliates, (c) misconduct by the
Executive in connection with the performance of the
Executive’s duties hereunder or other breach by the Executive
of this Agreement (specifically including, without limitation,
Section 1.4), (d) any breach of the Revlon Code of
Business Conduct, including, without limitation, the Code of Ethics
for Senior Financial Officers, or the Employee’s Agreement as
to Confidentiality and Non-Competition, or (e) any other
conduct on the part of the Executive which would make the
Executive’s continued employment by the Company prejudicial
to the best interests of the Company.
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4.4
Company Breach; Other Termination . The Executive shall be
entitled to terminate the Term and the Executive’s employment
upon 60 days’ prior written notice (if during such
period RCPC fails to cure any such breach) in the event that RCPC
materially breaches any of its obligations hereunder. 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 shall be, for RCPC either
(i) to
make payments in lieu of Base Salary in the amounts prescribed by
Section 3.1, to pay the Executive the portion, if any, of any
annual bonus contemplated by Section 3.2 and to continue the
Executive’s participation in the medical, dental and group
life insurance plans and other perquisites 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 have ended pursuant to
Section 2.1, if RCPC had given notice of non-renewal on the
date of termination (such period shall be referred to as the
“Severance Period”), provided that (1) such
benefit continuation is subject to the terms of such plans,
(2) life insurance continuation is subject to a limit of two
years, (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) any
bonus payments required pursuant to this Section 4.4(i) shall
be payable as and when bonuses would otherwise be payable to
executives under the Bonus Plan as then in effect, (5) 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 Executive Severance Plan that is applicable to
the Executive referred to in clause (ii) below, and (6) any
cash compensation paid or payable or any non-cash compensation paid
or payable in lieu of cash compensation earned by the Executive
from other employment or consultancy during such period shall
reduce the payments provided for herein payable with respect to
such other employment or consultancy, or
(ii) to
make the payments and provide the benefits prescribed by, and in
accordance with the terms and conditions of, the Executive
Severance Plan.
The Company
shall provide the greater of the payments and other benefits
described under clauses (i) and (ii) of this
Section 4.4; provided, however , if the
provision of any benefits described above would trigger a tax under
Section 409A, the Company shall instead promptly pay to the
Executive in a cash lump sum payment an amount equal to the value
(based on the then-current cost to the Company) of such benefits.
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 Plan in the case of clause (ii) above.
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, or any dispute
as to whether a termination of the Executive’s employment is
with or
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without Cause,
then if and to the extent that a final, non-appealable, 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.
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 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 Executiv
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