EXHIBIT 10.37
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into as of this 1st day of June,
1998 by and among CDRJ Investments (Lux) SA, a Luxembourg company ("Parent"),
its indirect wholly owned subsidiary Jafra Cosmetics International, Inc., a
Delaware corporation ("Employer"), and Michael DiGregorio ("Executive").
W I T N E S S E T H:
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WHEREAS, Employer desires to employ Executive as its President, United
States on the terms and conditions set forth herein;
WHEREAS, Executive desires to accept such employment on the terms and
conditions set forth herein;
WHEREAS, each of Parent, Employer and Executive agrees that Executive
will have a prominent role in the management of the business, and the
development of the goodwill, of Parent, Employer and their respective Affiliates
(as defined below) and will establish and develop relations and contacts with
the principal customers and suppliers of Parent, Employer and their respective
Affiliates in the United States, Mexico, Latin America, Europe and the rest of
the world, all of which constitute valuable goodwill of, and could be used by
Executive to compete unfairly with, Parent, Employer and their respective
Affiliates;
WHEREAS, (i) in the course of his employment with Employer, Executive
will obtain confidential and proprietary information and trade secrets
concerning the business and operation of Parent, Employer and their respective
Affiliates in the United States, Mexico, Latin America, and the rest of the
world that could be used to compete unfairly with Parent, Employer and their
respective Affiliates; (ii) the covenants and restrictions contained in Sections
8 through 13, inclusive, are intended to protect the legitimate interest of
Parent, Employer and their respective Affiliates in their respective goodwill,
trade secrets and other confidential and proprietary information; and (iii)
Executive desires to be bound by such covenants and restrictions;
NOW THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein and for other good and valuable consideration,
Employer, Parent and Executive hereby agree as follows:
1. Agreement to Employ; No Conflicts. Upon the terms and subject to the
conditions of this Agreement, Employer hereby employs Executive, and Executive
hereby accepts employment by Employer. Executive represents that he is entering
into this Agreement voluntarily and that his employment hereunder and compliance
with the terms and conditions hereof will not conflict with or result in the
breach by him of any agreement to which he is a party or by which he may be
bound.
2. Term; Position and Responsibilities.
(a) Term of Employment. Unless Executive's employment shall sooner
terminate pursuant to Section 7, Employer shall employ Executive for a term
commencing on the date hereof (the "Commencement Date") and ending on the second
anniversary of the Commencement Date; provided, however, that on each day
following the Commencement Date the period of Executive's employment pursuant to
this Agreement shall be automatically extended, upon the same terms and
conditions, for an additional day unless Employer or Executive gives 60 days
prior written notice (a "Non-Extension Notice") to the other of its or his
intention not to extend such period of Executive's employment hereunder;
provided, further, that delivery of a Non-Extension Notice by Employer or
Executive to the other shall not constitute a termination of Executive's
employment by the Person delivering such Non-Extension Notice unless such notice
specifically provides for such termination of employment in the manner described
in Section 7 below and the specific date thereof. The period commencing on the
Commencement Date and ending on the earlier of (i) the effective date of any
termination of Executive's employment pursuant to Section 7 and (ii) the later
of (x) the second anniversary of the Commencement Date and (y) the second
anniversary of the 60th day following receipt by Employer or Executive, as the
case may be, of a Non-Extension Notice delivered pursuant to this Section 2(a)
shall be referred to herein as the "Employment Period".
(b) Position and Responsibilities. During the Employment Period,
Executive shall serve as President, United States of Employer and have such
duties and responsibilities as are customarily assigned to individuals serving
in such position and such other duties consistent with Executive's title and
position as the Board of Directors of Employer (the "Board") specifies from time
to time. Executive shall devote all of his skill, knowledge and working time to
the conscientious performance of the duties and responsibilities of such
position, except for (i) vacation time as set forth in Section 6(c) and absence
for sickness or other similar disability and (ii) to the extent that it does not
interfere with the performance of Executive's duties hereunder and is in
compliance with Executive's covenants and obligations under Sections 8 through
13, inclusive, (x) such reasonable time as may be devoted to service on boards
of directors of other corporations and entities and the fulfillment of civic
responsibilities and (y) such reasonable time as may be necessary from time to
time for personal financial matters.
Executive shall also serve in such capacities as the Board shall
determine on behalf of Affiliates of Employer. It is understood that substantial
amounts of Executive's time shall be devoted to providing services to world-wide
Affiliates of Employer, and Executive understands the commitment to significant
travel time necessary to perform these services. The compensation described
herein represents Executive's aggregate right to compensation for services for
Employer and all of its Affiliates. Compensation paid by such Affiliates to
Executive for his services shall be applied against the amounts
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described in this Agreement, and shall, in consequence, offset Employer's
obligations hereunder. For this purpose, payments of a particular kind, and made
at particular times, shall be applied against obligations of similar kind and
timing hereunder.
3. Base Salary. As compensation for the services to be performed by
Executive during the Employment Period, Employer shall pay Executive a base
salary at an annualized rate of US $300,000, payable in installments on
Employer's regular payroll dates, and, in the event that Executive's employment
hereunder terminates by reason of his death, for one month after such
termination. The Board shall review Executive's base salary annually during the
period of his employment hereunder, and in its sole discretion, may increase
(but may not decrease) such base salary from time to time based upon the
performance of Executive, the financial condition of Employer, prevailing
industry salary levels and such other factors as the Board shall consider
relevant; provided that Executive's base salary shall be automatically increased
on each anniversary of the Commencement Date during the Employment Period by an
amount equal to the average increase in the consumer price index during the
immediately preceding twelve month period, as reported from time to time in the
Wall Street Journal. (The annual base salary payable to Executive under this
Section 3, as the same may be increased from time to time, shall hereinafter be
referred to as the "Base Salary".)
4. Incentive Compensation Arrangements.
(a) Annual Incentive Compensation. Employer shall establish an annual
bonus plan for its executive officers (the "Bonus Plan"). During the Employment
Period, Executive shall be entitled to participate in the Bonus Plan in
accordance with the generally applicable terms thereof as in effect from time to
time. The Bonus Plan shall provide that, for each fiscal year of Employer ending
during the Employment Period (each such year, a "Bonus Year"), (i) if Parent and
its Subsidiaries (collectively, the "Company") achieve 100% of the EBITDA target
established by the Board for such Bonus Year (the "EBITDA Target"), Executive
shall be entitled to an annual incentive bonus for such Bonus Year equal to 50%
of his Base Salary, (ii) if the Company achieves 85% of the EBITDA Target for
such Bonus Year, Executive shall be entitled to an annual incentive bonus for
such Bonus Year equal to 30% of his Base Salary, (iii) if the Company achieves
more than 85% of the EBITDA Target for such Bonus Year but less than 100% of
such EBITDA Target, Executive shall be entitled to an annual incentive bonus for
such Bonus Year equal to the sum of (x) 30% of his Base Salary and (y) 1.33% of
his Base Salary for each 1% that the performance of the Company for such Bonus
Year exceeds 85% of such EBITDA Target, (iv) if the Company achieves more than
100% of the EBITDA Target for such Bonus Year, Executive shall be entitled to an
annual incentive bonus determined as follows: (A) the Company shall create a
special bonus pool (the "Pool") equal to $ 1,000 for each $10,000 of EBITDA
achieved by the Company in excess of 100% of the EBITDA Target for such Bonus
Year and an additional $250 for each $10,000 of EBITDA achieved by the Company
in excess of
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125% of the EBITDA Target for such Bonus Year (if any), provided that the EBITDA
achieved by the Company for purposes of the calculation under this clause (A)
shall be determined after deduction for the Pool, and (B) each Senior Executive
designated by contract or by the Chief Executive Officer to participate in the
Pool shall receive his Target Bonus plus a portion of the amount in the Pool,
such portion to be determined by the Chief Executive Officer; and (v) if the
EBITDA achieved by the Company for a Bonus Year is less than 85% of the EBITDA
Target for such Bonus Year, Executive shall not be entitled to any annual
incentive bonus for such Bonus Year. With respect to the first Bonus Year,
Executive shall be entitled to a minimum guaranteed annual incentive bonus under
the Bonus Plan equal to 50% of his annualized Base Salary for such Bonus Year.
The annual incentive bonus payable to Executive under the Bonus Plan shall be
paid in cash and shall be paid no later than 30 days following receipt by the
Board of the audited consolidated financial statements of the Company for the
applicable Bonus Year.
(b) Opportunity to Purchase Shares. On or as soon as reasonably
practicable following the Commencement Date, Executive will be given the
opportunity to purchase up to 1,734 Class A voting shares, par value $2.00 per
share, of Parent (the "Shares"), for a per share purchase price equal to $100
(the "Purchase Price"), but in no event will Parent be required to offer to sell
or to sell any Shares to Executive at any time at which making such an offer or
selling any such Shares would violate any applicable securities law. The terms
and conditions of Executive's purchase of any Shares, including the restrictions
on transfer of the Shares, the right of Parent to repurchase all or a portion of
such Shares from Executive following any termination of Executive's employment
and the applicable repurchase price and the respective tag along and drag along
rights of Executive and Parent, shall be set forth in a separate Management
Stock Subscription Agreement, substantially in the form attached hereto as
Exhibit A, to be entered into by and between Parent and Executive. Employer will
use its reasonable best efforts to make third party financing, guaranteed by
Employer, available on customary terms to Executive for up to 75% of the
purchase price of the Shares purchased by Executive hereunder. Subject to
agreement of the lending bank and except as provided otherwise in connection
with an event of default (as defined in the applicable financing documents), the
principal amount financed shall become payable on the fifth anniversary of the
date of the origination of the loan and may be prepaid without penalty.
(c) Options. On or as soon as reasonably practicable following the
Commencement Date, Executive shall be granted non-qualified stock options (the
"Options") to purchase two shares of the Class A voting shares of Parent for
each Share purchased by Executive in accordance with Section 4(b) above, at an
option exercise price per share equal to the Purchase Price. Subject in each
case to Executive's continued employment with Employer until the applicable
vesting date, one-half of the Options will become vested and, subject to
compliance with applicable securities laws, exercisable in three equal annual
installments on each of the first three anniversaries of the date of grant and
the remaining one half of the Options (the "`Performance Options") will become
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vested and, subject to compliance with applicable securities laws, exercisable
either (i) if, during the performance period specified in the Management Stock
Option Agreement referred to below, the Company achieves the performance
objectives established by the Board on the basis of the management case attached
hereto as Exhibit B and specified in such Management Stock Option Agreement or
(ii) in the case of any Performance Options that do not become vested under the
foregoing clause (i) nine years from the date of grant. [A regional or operating
unit plan may be substituted for the Performance Options. Any such plan will
cover the same number of Shares as the Performance Options.] The terms and
conditions of the Options, including those described in this Section 4(c), and
the right of Parent to purchase vested Options from Executive under certain
circumstances, will be set forth in a separate Management Stock Option
Agreement, substantially in the form attached hereto as Exhibit C, to be entered
into by and between Executive and Parent at the time that such Options are
granted.
5. Employee Benefits. During the Employment Period, Executive shall be
entitled to participate in the profit sharing, pension, retirement, deferred
compensation, savings, life, medical, dental, disability and other welfare
benefit plans maintained by Employer for its senior executives in accordance
with the terms thereof, as the same may be amended and in effect from time to
time. The benefits referred to in this Section 5 shall be provided to Executive
on a basis that is commensurate with Executive's position and duties with
Employer hereunder.
6. Perquisites and Expenses.
(a) General. During the Employment Period, Executive shall be entitled
to participate in all perquisite programs maintained by Employer for its senior
executives, on a basis that is commensurate with Executive's position and duties
with Employer hereunder, in accordance with the terms thereof, as the same may
be amended and in effect from time to time.
(b) Business Travel, Lodging, etc. Employer shall reimburse Executive
for reasonable travel, lodging meal and other reasonable expenses incurred by
him in connection with his performance of services hereunder upon submission of
evidence, satisfactory to Employer, of the incurrence and purpose of each such
expense and otherwise in accordance with Employer's business travel and expense
reimbursement policy applicable to its senior executives as in effect from time
to time.
(c) Vacation. During the Employment Period, Executive shall be entitled
to a number of weeks of paid vacation on an annualized basis, without carryover
accumulation, equal to the number of weeks of paid vacation per year applicable
to senior executives of Employer in accordance with its vacation policy as in
effect from time to time.
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7. Termination of Employment.
(a) Termination Due to Death or Disability. In the event that
Executive's employment hereunder terminates due to his death or is terminated by
Employer due to Executive's Disability (as defined below), no termination
benefits shall be payable to or in respect of Executive except as provided in
Section 3 or Section 7(f)(ii). For purposes of this Agreement, "Disability"
shall mean a physical or mental disability that prevents or is reasonably
expected to prevent the performance by Executive of his duties hereunder for a
continuous period of six months or longer. The determination of Executive's
Disability shall (i) be made by an independent physician who is reasonably
acceptable to Employer and Executive (or his representative), (ii) be final and
binding on the parties hereto and (iii) be made taking into account such
competent medical evidence as shall be presented to such independent physician
by Executive and/or Employer or by any physician or group of physicians or other
competent medical experts employed by Executive and/or Employer to advise such
independent physician.
(b) Termination by Employer for Cause. Executive may be terminated for
Cause (as defined below) by Employer, provided that Executive shall have been
given prior written notice of any proposed termination of his employment for
Cause, which notice specified in reasonable detail the circumstances claimed to
provide the basis for such termination, and Executive shall not have made
reasonable effort to correct such circumstances, satisfactory to the Board,
within 30 days of receipt of such written notice. "Cause" shall mean (i) the
willful failure of Executive substantially to perform his duties hereunder
(other than any such failure due to Executive's physical or mental illness),
(ii) Executive's engaging in willful and serious misconduct that has caused or
is reasonably expected to result in material injury to Employer of any of its
Affiliates, (iii) Executive's conviction of, or entering a plea of guilty or
nolo contendere to, a crime that constitutes a felony or (iv) the willful and
material breach by Executive of any of his obligations hereunder or under any
other written agreement or covenant with Employer or any of its Affiliates.
(c) Termination Without Cause. A termination "Without Cause" shall mean
a termination of Executive's employment by Employer other than due to Disability
as described in Section 7(a) or for Cause as described in Section 7(b).
(d) Termination by Executive. Executive may terminate his employment for
any reason. A termination of employment by Executive for "Good Reason" shall
mean a termination by Executive of his employment with Employer following the
occurrence, without Executive's consent, of any of the following events: (i) the
assignment to Executive of duties that are significantly different from, and
that result in a substantial diminution of, the duties that he is to assume on
the Commencement Date, (ii) the assignment to Executive of a title that is
different from and junior to the title specified in Section 2 or (iii) the
failure of Employer to obtain the assumption of this Agreement by any Successor
(as defined below) to Employer as contemplated by Section 14, provided
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in any such case that within 30 days of Executive's becoming aware of the
occurrence of any such event, Executive shall have delivered written notice to
Employer of his intention to terminate his employment for Good Reason, which
notice specifies in reasonable detail the circumstances claimed to provide the
basis for such termination, and Employer shall not have made reasonable effort
to correct such circumstances, to the satisfaction of Executive, within 30 days
of receipt of such written notice.
(e) Notice of Termination. Any termination of Executive's employment by
Employer pursuant to Section 7(a), 7(b) or 7(c), or by Executive pursuant to
Section 7(d), shall be communication by a written Notice of Termination
addressed to the other parties to this Agreement. A "Notice of Termination"
shall mean a notice stating that Executive's employment with Employer has been
or will be terminated and the specific provisions of this Section 7 under which
such termination is being effected.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's employment by Employer
Without Cause or a termination by Executive of his employment for Good Reason in
either such case during the Employment Period (any such termination, a
"Qualifying Termination"), Employer shall pay to Executive (or, following his
death, to Executive's beneficiaries) his full Base Salary through the Date of
Termination and, as liquidated damages in respect of claims based on provisions
of this Agreement and provided Executive executes and delivers a general release
of all claims substantially in the form attached hereto as Exhibit D, the
following additional amounts:
(A) his Base Salary at the rate in effect hereunder immediately
prior to the Qualifying Termination, which shall be payable in
installments on Employer's regular payroll dates, for the period (such
period, the "Severance Period") beginning on the Date of Termination (as
defined below) and ending on the later of (i) the second anniversary of
the Commencement Date and (ii) the second anniversary of the Date of
Termination; plus
(B) if the Company achieves the performance objectives
established under the Bonus Plan for the Bonus Year that includes the
Date of Termination, an amount, payable in one lump sum as soon as
reasonably practicable following receipt by the Board of the
consolidated financial statements of the Company for such Bonus Year,
equal to the product of (1) the annual incentive Bonus that would have
been payable to Executive for such Bonus Year pursuant to Section 4(b)
under the Bonus Plan had he remained employed for the entire Bonus Year,
multiplied by (2) a fraction, the numerator of which is equal to the
number of days in such Bonus Year that precede the Date of Termination
and the denominator of which is equal to 365, less
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(C) the amount, if any, paid or payable to Executive under the
terms of any severance plan, severance policy, severance program or
severance practice of Employer or any of its Affiliates applicable to
Executive, as in effect on the Date of Termination (a "Severance
Program");
provided that Employer may, at any time, pay to Executive, in a single lump sum
and in satisfaction of Employer's obligations under clauses (A) and (B) of this
Section 7(f)(i), an amount equal to (x) the installments of the Base Salary
clause (A) above, and the amount, if any, then remaining to be paid to Executive
pursuant to clause (B) above, without discount for immediate payment, less (y)
the amount, if any, remaining to be paid to Executive pursuant to any Severance
Program identified under clause (C) above.
In addition, in the event of a Qualifying Termination, Employer shall,
during the Severance Period, provide Executive continued coverage under the
medical and other health plans of Employer referred to in Section 5 (the
"Continued Benefits") in which Executive was a participant immediately prior to
the Date of Termination, subject to timely payment by Executive of all premiums,
contributions and other co-payments required to be paid during such period by
senior executives of Employer under the terms of such plans as in effect from
time to time.
Executive shall not have a duty to mitigate the costs to Employer under
this Section 7(f)(i), except that Continued Benefits shall be canceled to the
extent of any comparable benefit coverage offered to Executive during the
Severance period by a subsequent employer or other Person (as defined below) for
which Executive performs services, including but not limited to consulting
services.
(ii) If Executive's employment shall terminate upon his death or due to
his Disability or if Employer shall terminate Executive's employment for Cause
or Executive shall terminate his employment without Good Reason during the
Employment Period, Employer shall pay Executive (or, in the event of his death,
his beneficiaries) his full Base Salary through the Date of Termination or as
provided in Section 3 above. In addition, in the case of any such termination
due to Executive's death or Disability, if the Company achieves the performance
objectives established under the Bonus Plan for the Bonus Year that includes the
Date of Termination, Employer shall pay Executive (or his beneficiaries if
applicable) an amount, payable in one lump sum as soon as reasonably practicable
following receipt by the Board of the consolidated financial statements of the
Company for such Bonus Year, equal to the product of (1) the annual incentive
Bonus that would have been payable to the Executive for such Bonus Year pursuant
to Section 4(b) under the Bonus Plan had he remained employed for the entire
Bonus Year, multiplied by (2) a fraction, the numerator of which is equal to the
number of days in such Bonus Year that precede the Date of Termination
(exclusive of any time between the onset of a physical or mental disability that
prevents the performance by Executive of his duties hereunder and the resulting
Date of Termination) and the denominator of which is equal to 365.
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(iii) Executive shall be entitled to receive all amounts payable and
benefits accrued under any otherwise applicable plan, policy, program or
practice of Employer in which Executive was a participant during his employment
with Employer in accordance with the terms thereof, provided that (x) Executive
shall not be entitled to receive any payments or benefits under any such plan,
policy, program or practice providing any bonus or incentive compensation (and
the provisions of this Section 7(f) shall supersede the provisions of any such
plan, policy, program or practice), and (y) the amount, if any, paid or payable
to Executive under the terms of any such plan, policy, program or practice
relating to severance shall reduce the amounts payable under Section 7(f)(i) as
provided in clause (C) thereof.
(g) Date of Termination. As used in this Agreement, the term "Date of
Termination" shall mean (i) if Executive's employment is terminated by his
death, the date of his death, (ii) if Executive's employment is terminated by
Employer for Cause, the latest of the date of which Notice of Termination is
given as contemplated by Section 7(e), the date of termination specified in such
notice and the date any applicable correction period ends, and (iii) if
Executive's employment is terminated by Employer Without Cause, due to
Executive's Disability or by Executive for any reason, the date that is 30 days
after the date on which Notice of Termination is given as contemplated by
Section 7(e) or, if no such notice is given, 30 days after the date of
termination of employment.
(h) Resignation upon Termination. Effective as of any Date of
Termination under this Section 7 or otherwise as of the date of Executive's
termination of employment with Employer, Executive shall resign, in writing,
from all Board memberships and other positions then held by him with Employer
and its Affiliates.
8. Unauthorized Disclosure. During the period of Executive's employment
with Employer and the ten-year period following any termination of such
employment, without the prior written consent of the Board or its authorized
representative, except to the extent required by an order of a court having
jurisdiction or under subpoena from an appropriate government agency, in which
event, Executive shall use his best efforts to consult with the Board prior to
responding to any such order or subpoena, and except as required in the
performance of his duties hereunder, Executive shall not disclose any
confidential or proprietary trade secrets, customer lists, drawings, design,
information regarding product development, marketing plans, sales plans,
manufacturing plans, management organizational information (including but not
limited to data and other information relating to members of the Board of
Directors of Parent, Employer or any of their respective Affiliates or to
management of Parent, Employer or any of their respective Affiliates), operating
policies or manuals, business plans, financial records, packaging design or
other financial, commercial, business or technical information (a) relating to
Parent, Employer or any of their respective Affiliates or (b) that Parent,
Employer or any of their respective Affiliates may receive belonging to
suppliers,
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customers or others who do business with Parent, Employer or any of their
respective Affiliates (collectively, "Confidential Information") to any third
person unless such Confidential Information has been previously disclosed to the
public or is in the public domain (other than by reason of Executive's breach of
this Section 8).
9. Non-Competition. During the period of Executive's employment with
Employer and, following any termination thereof, the period ending on (a) in the
case of a Qualifying Termination, the last day of the Severance Period or (b) in
the case of any other termination of Executive's employment with Employer, the
second anniversary of the effective date of such termination (such applicable
periods collectively, the "Restriction Period"), Executive shall not, directly
or indirectly, become employed in an executive capacity, by, engage in business
with, serve as an agent or consultant to, or become a partner, member, principal
or stockholder (other than a holder of less than 1% of the outstanding voting
shares of any publicly held company) of, any Person that competes anywhere in
the United States, Mexico, Latin America or Europe, with any part of the
business of Parent, Employer or any of their respective Affiliates that relates
to producing, marketing, manufacturing, designing, formulating, procuring or
developing facial skin care or body products, color cosmetics, fragrances,
health or beauty supplements or other such products or related materials. For
purposes of this Section 9, the phrase employment "in an executive capacity"
shall mean employment in any position in connection with which Executive has or
reasonably would be viewed as having powers and authorities with respect to any
other Person or any part of the business thereof that are substantially similar,
with respect thereto, to the powers and authorities assigned to the executive
officer or officers of Employer serving in the capacities served by Executive
during the Employment Period or any superior executive officer of Employer in
the By-Laws of Employer as in effect on the date hereof, a copy of the relevant
portions of which has been delivered to Executive on or before the date hereof,
and which Executive hereby confirms that he has reviewed.
10. Non-Solicitation of Employees. During the Restriction Period,
Executive shall not, directly or indirectly, for his own account or for the
account of any other Person anywhere in the United States, Mexico, Latin America
or Europe, (i) solicit for employment, employ or otherwise interfere with the
relationship of Parent, Employer or any of their respective Affiliates with any
natural person throughout the world who is or was employed by or otherwise
engaged to perform services for Parent, Employer or any of their respective
Affiliates at any time during which the Executive was employed by the Employer
(in the case of any such activity during such time) or during the six-month
period preceding such solicitation, employment or interference (in the case of
any such activity after the Date of Termination), other than any such
solicitation or employment on behalf of the Parent, Employer or any of their
respective Affiliates during Executive's employment with Employer, or (ii)
induce any employee of Parent, Employer or any of their respective Affiliates
who is a member of management to engage in any activity
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which Executive is prohibited from engaging in under any of Sections 8, 9, 10 or
11 to terminate his employment with Employer.
11. Non-Solicitation of Customers. During the Restriction Period,
Executive shall not, directly or indirectly, for his own account or for the
account of any other Person anywhere in the United States, Mexico, Latin America
or Europe, solicit or otherwise attempt to establish any business relationship
of a nature that is competitive with the business or relationship of Parent,
Employer or any of their respective Affiliates with any Person throughout the
world which is or was a customer, client or distributor of Parent, Employer or
any of their respective Affiliates at any time during which Executive was
employed by Employer (in the case of any such activity during such time) or
during the twelve-month period preceding the Date of Termination (in the case of
any such activity after the Date of Termination), other than any such
solicitation on behalf of Parent, Employer or any of their respective Affiliates
during Executive's employment with Employer.
12. Return of Documents. In the event of the termination of Executive's
employment for any reason, Executive shall deliver to Employer all of (a) the
property of each of Parent, Employer and their respective Affiliates and (b) the
documents and data of any nature and in whatever medium of each of Parent,
Employer and their respective Affiliates, and he shall not take with him any
such property, documents or data or any reproduction thereof, or any documents
containing or pertaining to any Confidential Information.
13. Injunctive Relief with Respect to Covenants, Forum, Venue and
Jurisdiction. Executive acknowledges and agrees that the covenants, obligations
and agreements of Executive contained in Sections 8, 9, 10, 11 , 12 and 13
relate to special, unique and extraordinary matters and that a violation of any
of the terms of such covenants, obligations or agreements will cause Employer
irreparable injury for which adequate remedies are not available at law.
Therefore, Executive agrees that Employer shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) as a court of competent jurisdiction may deem necessary or
appropriate to restrain Executive from committing any violation of such
covenants, obligations or agreements. These injunctive remedies are cumulative
and in addition to any other rights and remedies Employer may have. Parent,
Employer and Executive each hereby irrevocably submits to the exclusive
jurisdiction of the courts of California and the Federal courts of the United
States of America, in each case located in Los Angeles, California, in respect
of this injunctive remedies set forth in this Section 13 and the interpretation
and enforcement of Sections 8, 9, 10, 11, 12 and 13 insofar as such
interpretation and enforcement relate to any request or application for
injunctive relief in accordance with the provisions of this Section 13, and the
parties hereto hereby irrevocably agree that (a) the sole and exclusive
appropriate venue for any suit or proceeding relating solely to such injunctive
relief shall be in such a court, (b) all claims
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with respect to any request or application for such injunctive relief shall be
heard and determined exclusively in such a court, (c) any such court shall have
exclusive jurisdiction over the person of such parties and over the subject
matter of any dispute relating to any request or application for such injunctive
relief, and (d) each hereby waives any and all objections and defenses based on
forum, venue or personal or subject matter jurisdiction as they may relate to an
application for such injunctive relief in a suit or proceeding brought before
such a court in accordance with the provisions of this Section 13.
14. Assumption of Agreement. Employer shall require any Successor
thereto, by agreement in form and substance reasonably satisfactory to
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Employer would be required to perform it if
no such succession had taken place. Failure of Employer to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to terminate his employment with Employer
for Good Reason as described in Section 7(c) provided that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
15. Entire Agreement. This Agreement (including the Exhibits hereto)
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof. All prior correspondence and proposals (including but not
limited to summaries of proposed terms) and all prior promises, representations,
understandings, arrangements and agreements relating to such subject matter
(including but not limited to those made to or with Executive by any other
Person) are merged herein and superseded hereby.
16. Indemnification. Employer hereby agrees that it shall indemnify and
hold harmless Executive to the fullest extent permitted by Delaware law from and
against any and all liabilities, costs, claims and expenses, including all costs
and expenses incurred in defense of litigation (including attorneys' fees),
arising out of the employment of executive hereunder, except to the extent
arising out of or based upon the gross negligence or willful misconduct of
Executive. Costs and expenses incurred by Executive in defense of such
litigation (including attorneys' fees) shall be paid by Employer in advance of
the final disposition of such litigation upon receipt by Employer of (a) a
written request for payment, (b) appropriate documentation evidencing the
incurrence, amount and nature of the costs and expenses for which payment is
being sought, and (c) an undertaking adequate under Delaware law made by or on
behalf of Executive to repay the amounts so paid if it shall ultimately be
determined that Executive is not entitled to be indemnified by Employer under
this Agreement, including but not limited to as a result of such exception.
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17. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding on and
inure to the benefit of Parent, Employer, and their respective Successors and
permitted assigns. This Agreement shall also be binding on and inure to the
benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other parties hereto, except as
provided pursuant to this Section 17(a). Each of Parent and Employer may effect
such an assignment without prior written approval of Executive upon the transfer
of all or substantially all of its business and/or assets (by whatever means),
provided that the Successor to Employer shall expressly assume and agree to
perform this Agreement in accordance with the provisions of Section 14.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without reference to principles of
conflicts of law, provided that the indemnification provisions contained herein
shall be governed by and construed in accordance with Delaware law.
(c) Taxes. Employer may withhold from any payments made under this
Agreement all applicable taxes, including but not limited to income, employment
and social insurance taxes, as shall be required by law.
(d) Amendments. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is approved by the
Board or a Person authorized thereby and is agreed to in writing by Executive
and, in the case of any such modification, waiver or discharge affecting the
rights or obligations of Parent, is approved by the Board of Directors or Parent
or a Person authorized thereby. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No waiver of any provision of this Agreement shall be
implied from any course of dealing between or among the parties hereto or from
any failure by any party hereto to assert its rights hereunder on any occasion
or series of occasions.
(e) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
(f) Notices. Any notice or other communication required or permitted to
be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or, if so
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mailed, on the third business day after the mailing thereof, and (iv) addressed
as follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
A) If to Employer, to it at:
2451 Townsgate Road
Westlake Village, California 91361
Attention: General Counsel
(B) If to Parent to it at:
3 Boulevard Royal
2449 Luxembourg
Luxembourg
Attention: General Counsel
(C) if to Executive, to him at his residential address as
currently on file with Employer.
Copies of any notices or other communications given under this Agreement shall
also be given to:
Clayton Dubilier & Rice, Inc.
375 Park Avenue
New York, New York 10152
Attention: Donald J. Gogel
and
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attention: Paul S. Bird, Esq.
and
Stephan G. Bachelder & Associates, P.A.
22 Free Street
Portland, Maine 04101
Attention: Stephan G. Bachelder, Esq.
(g) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
14
(h) Headings. The section and other headings contained in this Agreement
are for the convenience of the parties only and are not intended to be a part
hereof or to affect the meaning or interpretation hereof.
(i) Counterparts. This Agreement may be executed simultaneously in
counterparts. Each counterpart shall be deemed an original agreement, but all
counterparts shall constitute only a single agreement.
(j) Certain Definitions.
"Affiliate": with respect to any Person, means any other Person that,
directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with the first Person, including but
not limited to a Subsidiary of the first Person, a Person of which the first
Person is a Subsidiary, or another Subsidiary of a Person of which the first
Person is also a Subsidiary.
"Control": with respect to any Person, means the possession, directly or
indirectly, severally or jointly, of the power to direct or cause the direction
of the management policies of such Person, whether through the ownership of
voting securities, by contract or credit arrangement, as trustee or executor, or
otherwise.
"Person": any natural person, firm, partnership, limited liability
company, association, corporation, company, trust, business trust, governmental
authority or other entity.
"Subsidiary": with respect to any Person, each corporation or other
Person in which the first Person owns or Controls, directly or indirectly,
capital stock or other ownership interests representing 50% or more of the
combined voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.
"Successor": of a Person means a Person that succeeds to the first
Person's assets and liabilities by merger, liquidation, dissolution or otherwise
by operation of law, or a Person to which all or substantially all the assets
and/or business of the first Person are transferred.
15
IN WITNESS WHEREOF, Parent and Employer have duly executed this
Agreement by their authorized representatives, and Executive has hereunto set
his hand, in each case effective as of the date first above written.
CDRJ Investments (Lux) SA
By: /s/ RALPH S. MASON
--------------------------------------
Name: Ralph S. Mason
Title: Executive Vice President
Jafra Cosmetics International, Inc.
By: /s/ RALPH S. MASON
--------------------------------------
Name: Ralph S. Mason
Title: Executive Vice President
Executive:
By: /s/ MICHAEL DIGREGORIO
--------------------------------------
Name: Michael DiGregorio
Title:
16
[Jafra Cosmetics International letterhead]
7 August 1998
Mr. Michael DiGregorio
3004 Grandoaks Drive
Westlake Village, CA 91361
Dear Mike:
Concurrent with the execution of this letter, you are entering into an
employment agreement with CDRJ Investments (Lux) SA and Aft Cosmetics
International, Inc. (the "Company" or "we") effective May 18, 1998 (the
"Employment Agreement"). This letter memorializes certain specific additional
understandings in connection with your employment with the Company and/or its
affiliates.
1. Reimbursement for Moving Expenses. We shall reimburse you for
unreimbursed Moving Expenses (as defined below) upon receipt of evidence of such
expenses, provided that such evidence is satisfactory to us. For purposes
hereof, the term Moving Expenses shall mean reasonable and customary expenses
you incur in connection with the relocation of you, your family, and its
personal possessions (including your automobile) from Mexico to the area or
Westlake Village, California (including travel expenses for up to three visits
by you and your family to the Westlake Village area for the purpose of locating
a new residence) reasonable and customary closing costs (excluding mortgage
interest differential expenses, mortgage origination fees or points, or similar
fees or charges relating to the cost of financing the purchase of Executive's
new residence) with respect to the acquisition of your new residence in the
Westlake Village area, and your personal lodging, meals, and related expenses
you incur for you and/or your family during the Employment Period (as defined in
the Employment Agreement) and before the date you occupy your new residence,
provided that we shall not reimburse you for the lease payments on your current
temporary residence for any period after August 19, 1998.
2. Automobile Allowance. During the Employment, Period (as defined in
the Employment Agreement), we shall provide you with the use of an automobile.
You may incur income, employment, and/or other taxes with respect to the
provision of such automobile. If you do, you understand (and by accepting this
letter you agree) that you shall be solely responsible for any such taxes.
3. Reimbursement of Legal Expenses. We shall reimburse you for up to
$5,000 of legal expense you incur in connection with the finalization of your
employment arrangement with us upon submission of evidence of such expenses,
provided such evidence is satisfactory to us.
4. Financial Planning. We shall provide you such personal financial
planning services, if any, that we provide to managers at the level of Country
President or higher.
5. Vacation. Notwithstanding the provisions of Section 5(c) of the
Employment Agreement, you will be entitled to a minimum or three weeks vacation.
Any additional vacation will be commensurate with your responsibilities as
determined by you in your professional judgment.
Please indicate your agreement with this letter by signing in the space
provided below.
JAFRA COSMETICS INTERNATIONAL, INC.
By: /s/ Ralph S. Mason, III
--------------------------------
Name: Ralph S. Mason, III
Title Senior Vice President &
General Counsel
Agreed to this 7 day of August 1998:
/s/ MICHAEL DIGREGORIO
- ------------------------------
Michael DiGregorio
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