EMPLOYMENT AGREEMENT
, Amended and Restated as of April
27, 2007, between REVLON CONSUMER PRODUCTS CORPORATION, a Delaware
corporation (“RCPC” and, together with its parent
Revlon, Inc. and its subsidiaries, the “Company”), and
David Kennedy (the “Executive”).
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, as amended and restated.
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 president and chief executive officer
of Revlon, Inc. (“Revlon”) and RCPC, reporting to the
Board of Directors of each of Revlon and RCPC, and to perform such
other duties consistent with such position (including service as a
director or officer of any subsidiary of Revlon, Inc., if elected)
as may be assigned by the Board of Directors of Revlon. The
Executive’s title shall be President and Chief Executive
Officer of Revlon and RCPC, 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 Revlon’s
Board of Directors. RCPC agrees to use its best efforts to cause
the Executive 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, you
hereby represent that you are not a party to any contract,
agreement or understanding which prevents, prohibits or limits you
in any way from entering into and fully performing your obligations
under this Agreement and any duties and responsibilities that may
be assigned to you 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 as of the date first set forth
above (the “Effective Date”) and shall end on the later
of December 31, 2008 or twenty-four months after RCPC provides to
the Executive a notice of non-renewal, unless in either case sooner
terminated pursuant to Section 4. Non-extension of the Term shall
not be deemed to be a breach of this Agreement by RCPC for purposes
of Section 4.4. Additionally, the Executive may terminate the Term
at any time upon sixty (60) days’ prior written notice to the
Company and such termination shall not be deemed a breach of this
Agreement. 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 Policy as in
effect from time to time (the “Executive Severance
Policy”), provided that the Severance Period for the
Executive under the Executive Severance Policy shall be 24 months,
subject to the terms and conditions of such policy.
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
in bi-weekly arrears, at the annual rate of not less than
$1,300,000 (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 Base Salary shall be reviewed by Revlon’s
Board of Directors or Compensation Committee from time to time. In
the event that Revlon’s Board of Directors or Compensation
Committee, in its sole discretion, 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 . 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 his bonus (if not
already paid) with respect to the year 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 .
In the event of any “Change of Control”, as defined on
Schedule A , all then unvested stock options and restricted
shares held by the Executive shall immediately vest and be fully
exercisable.
3.4 Business Expenses . RCPC
shall pay or reimburse the Executive for all reasonable expenses
actually incurred or paid by the Executive during the Term in the
performance of the Executive’s services under this Agreement,
subject to and in accordance with the Company’s applicable
expense reimbursement and related policies and procedures as in
effect from time to time.
3.5 Vacation . During each
year of the Term, the Executive shall be entitled to a vacation
period or periods in accordance with the vacation policy of the
Company as in effect from time to time, but not less than 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 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, (b) to
receive a car allowance at the rate of $15,000 per annum, which is
intended to cover lease, insurance, operating and maintenance costs
under the car allowance program as in effect from time to time, and
(c) to participate in a special rate for personal training sessions
at a strength and conditioning center located on 55 th
Street here in NYC on a basis consistent with other executives at
Executive’s level.
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, other than (i) for
accrued, but unpaid, Base Salary as of such date and (ii) pursuant
to life insurance provided under Section 3.6(a).
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 gross neglect by the Executive of the Executive’s duties
hereunder, conviction of the Executive of any felony, conviction of
the Executive of any lesser crime or offense involving the property
of the Company or any of its affiliates, 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 (specifically including, without
limitation, Section 1.4), any breach of the Revlon Code of Business
Conduct, or the Employee Agreement as to Confidentiality and
Non-Competition, or any other conduct on the part of the Executive
which would make the Executive’s continued employment by the
Company prejudicial in any material respect to the best interests
of the Company.
4.4 Company Breach; Other
Termination . The Executive shall be entitled to terminate the
Term and the Executive’s employment upon 60 days’ prior
written notice (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 (at the Executive’s election by
written notice within 10 days after such termination), for RCPC
either
2
(i) to make payments in lieu of Base
Salary in the amounts prescribed by Section 3.1, to pay the
Executive any annual bonus contemplated by Section 3.2 and to
continue the Executive’s participation in the medical, dental
and group life insurance 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 have expired 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 Policy 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 (but not including any pension or retirement benefits
payable by The Coca Cola Company or Coca Cola Amatil Limited) 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 the Executive Severance Policy of the
Company as in effect from time to time, upon the Executive’s
compliance with the terms and conditions thereof, provided that the
Severance Period for the Executive shall be 24 months.
Any compensation earned by the
Executive from other employment or a consultancy (but not including
any pension or retirement benefits payable by The Coca Cola Company
or Coca Cola Amatil Limited) shall reduce the payments required
pursuant to clause (i) above or shall be governed by the terms of
the Executive Severance Policy 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 without Cause, 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.
4.6 No Mitigation . In no
event shall the Executive be obligated to seek other
employment.
4.7 Internal Revenue Code 409A
. Internal Revenue Code section 409A (“Section 409A”)
imposes additional taxes and interest on compensation or benefits
deferred under certain nonqualified deferred compensation plans (as
defined under the Code and related regulations). These plans may
include, among others, nonqualified retirement plans, bonus plans,
stock option plans, employment agreements and severance agreements.
Revlon 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.
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 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
