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SECURITIES AND EXCHANGE COMMISSION,
WASHINGTON, D.C. 20549
--------------------
SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D) (1) OR 13(E) (1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
CARSON, INC.
(Name of Subject Company (Issuer))
COSMAIR, INC.
CRAYON ACQUISITION CORP.
(Names of Filing Persons Offerors)
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
145845103
(CUSIP Number of Class of Securities)
JOHN D. SULLIVAN, ESQ.
GENERAL COUNSEL
COSMAIR, INC.
575 FIFTH AVENUE, NEW YORK, NEW YORK 10017
TELEPHONE: (212) 818-1500
(Name, Address and Telephone Numbers of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
ELLEN J. ODONER, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
TELEPHONE: (212) 310-8000
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer:
Check the appropriate boxes below to designate any transactions to which
the statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
(Continued on following pages)
(Page 1 of 20 pages)
NY2:\896617\01\39200.0029
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This Amendment No. 3 amends and supplements the Tender Offer Statement
on Schedule TO filed with the Securities and Exchange Commission (the
"Commission") on March 8, 2000 (as amended and supplemented, the "Schedule TO")
by Crayon Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly-owned subsidiary of Cosmair, Inc., a Delaware corporation ("Parent"),
with respect to the offer by Purchaser to purchase all of the outstanding shares
of Class A common stock, par value $0.01 per share (the "Shares"), of Carson,
Inc., a Delaware corporation (the "Company"), at a price of $5.20 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase, dated March 8, 2000, filed as
Exhibit (a)(1)(A) to this Statement (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any supplements or
amendments, collectively constitute the "Offer").
ITEM 4 TERMS OF THE TRANSACTION
On April 5, 2000, Parent issued a press release announcing that it has extended
the period during which the Offer will remain open to 5:00 P.M., New York City
time, Friday, April 28, 2000. The full text of the press release is set forth in
Exhibit (a)(1)(H) and is incorporated herein by reference.
ITEM 12 EXHIBITS
(a)(1)(A) Offer to Purchase, dated March 8, 2000.*
(a)(1)(B) Letter of Transmittal.*
(a)(1)(C) Notice of Guaranteed Delivery.*
(a)(1)(D) Form of letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(1)(E) Form of letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(1)(G) Summary Advertisement, dated March 8, 2000, appearing in the Wall
Street Journal.*
(a)(1)(H) Press release issued by Parent, dated April 5, 2000.
(b) Not applicable.
(d)(1) Agreement and Plan of Merger, dated as of February 25, 2000, by and
among Parent, Purchaser and the Company.*
(d)(2) Stockholders Agreement, dated as of February 25, 2000, by and among
Parent, Purchaser, the Company and the holders of Shares and shares of
Class C Stock, par value $.01 per share, of the Company ("Class C
Shares") parties thereto.*
(d)(3) Confidentiality Agreement, dated July 24, 1997, as extended, by and
between Parent and the Company.*
(d)(4) Exclusivity Agreement, dated as of February 3, 2000, by and between
the Company and Parent and agreed to by DNL Partners Limited
Partnership.*
(d)(5) Employment Agreement, dated as of February 25, 2000, by and between
Parent and Malcolm R. Yesner.
(d)(6) Reimbursement Agreement, dated as of February 25, 2000, among the
Company and certain directors of the Company.*
(d)(7) Letter Agreement, dated as of February 25, 2000, among DNL Partners
Limited Partnership and Parent.*
(d)(8) Form of Indemnity Release between certain officers and directors of
the Company and Parent.*
(g) Not applicable.
(h) Not applicable.
- -------------------
* Previously Filed.
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SIGNATURE
After due inquiry and to the best of their knowledge and belief, the undersigned
hereby certify as of April 5, 2000 that the information set forth in this
statement is true, complete and correct.
COSMAIR, INC.
By: /s/ Roger Dolden
----------------------------------------
Name: Roger Dolden
Title: Executive Vice President, Chief
Administrative Officer and Secretary
CRAYON ACQUISITION CORP.
By: /s/ Roger Dolden
----------------------------------------
Name: Roger Dolden
Title: Vice President and Secretary
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(a)(1)(A) Offer to Purchase, dated March 8, 2000.*
(a)(1)(B) Letter of Transmittal.*
(a)(1)(C) Notice of Guaranteed Delivery.*
(a)(1)(D) Form of letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(1)(E) Form of letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(1)(G) Summary Advertisement, dated March 8, 2000, appearing in the Wall
Street Journal.*
(a)(1)(H) Press release issued by Parent, dated April 5, 2000.
(d)(1) Agreement and Plan of Merger, dated as of February 25, 2000, by and
among Parent, Purchaser and the Company.*
(d)(2) Stockholders Agreement, dated as of February 25, 2000, by and among
Parent, Purchaser, the Company and the holders of Shares and shares of
Class C Stock, par value $.01 per share, of the Company ("Class C
Shares") parties thereto.*
(d)(3) Confidentiality Agreement, dated July 24, 1997, as extended, by and
between Parent and the Company.*
(d)(4) Exclusivity Agreement, dated as of February 3, 2000, by and between
the Company and Parent and agreed to by DNL Partners Limited
Partnership.*
(d)(5) Employment Agreement, dated as of February 25, 2000, by and between
Parent and Malcolm R. Yesner.
(d)(6) Reimbursement Agreement, dated as of February 25, 2000, among the
Company and certain directors of the Company.*
(d)(7) Letter Agreement, dated as of February 25, 2000, among DNL Partners
Limited Partnership and Parent.*
(d)(8) Form of Indemnity Release between certain officers and directors of
the Company and Parent.*
- -------------------
* Previously Filed.
4
EXHIBIT (a)(1)(H)
FOR IMMEDIATE RELEASE CONTACT: Ellen Beth Van Buskirk
COSMAIR, INC.
(212) 984-4528
COSMAIR EXTENDS TENDER OFFER FOR CARSON, INC.
------------------------------------------------
NEW EXPIRATION DATE IS APRIL 28, 2000
------------------------------------------------
NEW YORK (April 5, 2000) - Cosmair, Inc. announced today that it has extended
the expiration date for its cash tender offer for all outstanding Class A common
stock of Carson, Inc. (NYSE: CIC), at $5.20 net per share. The new expiration
date is Friday, April 28, 2000 at 5:00 p.m EST.
As of the close of business on Tuesday, April 4, approximately 7.7 million
shares of Carson's Class A common stock had been tendered representing
approximately 46 percent of the outstanding Carson common stock on a fully
diluted basis.
As previously announced, Cosmair is responding to a request for additional
information issued by the Department of Justice Antitrust Division.
# # #
NY2:\896696\01\39200.0029
EXHIBIT (d)(5)
EMPLOYMENT AGREEMENT
--------------------
This Agreement (this "Agreement"), dated as of February 25, 2000, is
made by and among Cosmair, Inc., a Delaware corporation (the "Corporation"), and
Mr. Malcolm Yesner (the "Executive").
RECITALS
--------
1. The Executive is presently Chief Executive Officer of each of
Carson, Inc., a Delaware corporation ("Carson"), and Carson Products Company, a
Delaware corporation ("Carson Products").
2. Pursuant to an Agreement and Plan of Merger dated as of February 25,
2000, (the "Merger Agreement"), by and among the Corporation, Carson Acquisition
Corp. and Carson, the Corporation has agreed to make a cash tender offer (the
"Tender Offer") for all of the shares of Class A Common Stock of Carson ("Carson
Stock").
3. The Corporation desires to retain the services of the Executive, and
is not willing to enter into the Merger Agreement unless the Executive agrees to
become employed by the Corporation, immediately following completion of the
Tender Offer, on the terms and subject to the conditions set forth in this
Agreement. The Executive is willing to become employed by the Corporation,
immediately following completion of the Tender Offer, on such terms and subject
to such conditions.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the Corporation
and the Executive hereby agree as follows:
1. DEFINITIONS.
1.1 "AFFILIATE" means any person or entity of any kind effectively
controlling, effectively controlled by or under effective common control with
the Corporation.
1.2 "BOARD" means the Board of Directors of the Corporation.
1.3 "CAUSE" means (a) the Executive is convicted of a felony involving
moral turpitude, (b) the Executive commits a willful serious act intending to
enrich himself at the expense of the Corporation or any Affiliate, or (c) the
Executive, in carrying out his duties and responsibilities under this Agreement,
engages in gross negligence or willful misconduct which, in either case, results
in material harm to the Corporation and/or any Affiliate.
NY2:\877374\10\39200.0029
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1.4 "COMMENCEMENT DATE" means the earlier to occur of (i) the first
business day following the date upon which the Corporation accepts Carson Stock
for payment pursuant to the Tender Offer, provided that the Minimum Condition
(as defined in the Merger Agreement) shall not have been waived or (ii) the date
the Merger (as defined in the Merger Agreement) occurs.
1.5 "DISABILITY" means the Executive's inability to render the services
required hereunder by reason of a physical or mental disability reasonably
expected to last for more than six months after the date such disability is
first diagnosed, as determined by the written medical opinion of an independent
medical physician selected in good faith by the Corporation.
1.6 "GOOD REASON" means the relocation, without the written consent of
the Executive, of the Executive's principal place of business to a place more
than 30 miles outside one of the following four metropolitan areas: Chicago,
Illinois; New York, New York; Atlanta, Georgia; and Savannah, Georgia.
1.7 "PARENT" means any corporation which has a direct or indirect legal
or beneficial ownership interest in the Corporation, but only if any such
corporation owns or controls, directly or indirectly, stock possessing at least
50% of the total combined voting power of all classes of stock of the
Corporation.
1.8 "RESTRICTION PERIOD" means the period commencing on the date the
Executive's employment with the Corporation ceases for any reason and ending on
the day immediately preceding the third anniversary of such date.
1.9 "SUBSIDIARY" means any corporation (other than the Corporation) in
which the Corporation or any Parent has a direct or indirect legal or beneficial
ownership interest, but only if the Corporation or the Parent, as the case may
be, owns or controls, directly or indirectly, stock possessing at least 20% of
the total combined voting power of all classes of stock in any such corporation.
2. EFFECTIVENESS OF THIS AGREEMENT; EMPLOYMENT.
(a) This Agreement shall become effective on the Commencement Date.
This Agreement shall not become effective, and shall have no further force
or effect, if the Merger Agreement is terminated in accordance with its
terms prior to the Commencement Date.
(b) Subject to the terms and provisions set forth in this Agreement,
the Corporation during the Term of Employment agrees to employ the
Executive as an officer of the Corporation, and the Executive hereby
accepts such employment.
3. TERM OF EMPLOYMENT. The initial term of employment under this
Agreement shall commence on the Commencement Date and, unless earlier terminated
by the Corporation or the Executive under Section 6 of this Agreement, shall
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continue until the second anniversary thereof (the "Initial Term"). At the end
of the Initial Term, this Agreement shall continue in effect for additional
one-year terms ending on the anniversary of the Initial Term termination date on
the same terms and conditions as the Initial Term except as otherwise expressly
provided herein (each, a "Renewal Term," and together with the Initial Term, the
"Term of Employment") unless either party gives written notice to the other
party no later than ninety (90) days prior to the expiration of the Initial Term
or the then current Renewal Term.
4. POSITIONS, RESPONSIBILITIES AND DUTIES.
4.1 POSITIONS AND DUTIES. During the Term of Employment, the Executive
shall be employed and shall serve as the President of Carson Products and an
officer of the Corporation with such duties as are determined from time to time
by the Board or the Board's designees. The Executive shall have liaison
responsibility for Carson Products' international business during the
Corporation's 2000 fiscal year. The Executive shall report to the President of
the L'Oreal Retail Division. For the fiscal year beginning January 1, 2001, the
Executive shall be considered for the Corporation's Executive Committee.
4.2 ATTENTION TO DUTIES AND RESPONSIBILITIES. During the Term of
Employment, the Executive shall devote his full business time to the business
and affairs of the Corporation and the Executive shall use his best effects,
ability and fidelity to perform faithfully and efficiently the duties and
responsibilities contemplated by this Agreement.
5. COMPENSATION AND OTHER BENEFITS.
5.1 BASE SALARY. During the Term of Employment, the Executive shall
receive a base salary ("Base Salary") at the rate of $375,000 per annum through
December 31, 2000, $420,000 per annum for the period from January 1, 2001
through December 31, 2001, and not less than $420,000 per annum for the period
from January 1, 2002 through the remainder of the Initial Term payable in
accordance with past practices until such practices are changed by the Board.
During any Renewal Term, on an annual basis or at such other times as the
Corporation may determine, the Corporation may review the Executive's
performance and determine whether, in its sole discretion, the Corporation will
increase (but not decrease) the Executive's Base Salary.
5.2 BONUS.
(a) ANNUAL BONUS. During the Term of Employment, the Executive shall
be eligible to receive, in the sole discretion of the Corporation, an
annual bonus of up to 30% of such Executive's Base Salary ("Annual Bonus")
as determined by management of the Corporation in its sole discretion;
provided, however, that in respect of the Corporation's 2000 fiscal year
the Executive shall be entitled to receive a guaranteed bonus of $150,000
payable in a lump sum no later than fifteen (15) business days following
the end of such fiscal year. Each other Annual Bonus will be payable to the
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Executive in a lump sum within fifteen (15) business days after the end of
the fiscal year to which it relates or as soon as practicable thereafter,
but in no event will such bonus be payable at a different time as annual
bonuses are paid to other senior executives of the Corporation.
(b) RETENTION BONUS. The Executive shall be entitled to a "Retention
Bonus" of $2,250,000 (the "Retention Bonus") payable in a lump sum within
fifteen (15) business days after the earliest to occur of (i) the
expiration of the Initial Term (provided the Executive is employed by the
Corporation on the last day thereof), (ii) death or Disability of the
Executive and (iii) termination of the Executive's employment without Cause
or for Good Reason.
5.3 STOCK INCENTIVE PLAN; OTHER INCENTIVE, RETIREMENT, AND SAVINGS
PLANS.
(a) During the Term of Employment, the Executive shall participate in
the Corporation's Stock Incentive Plan maintained for the benefit of senior
executives of the Corporation (the "Stock Incentive Plan"). On or about
December 31, 2000, the Corporation shall credit $100,000 to the Executive's
phantom stock account established in connection with the Stock Incentive
Plan (the "Phantom Stock Account") for the fiscal year ending December 31,
2000. For each successive completed fiscal year during the Term of
Employment, the Corporation shall credit the Executive's Phantom Stock
Account with an amount equal to the Executive's Annual Bonus actually
awarded pursuant to Section 5.2(a) hereof. The specific terms of the
Executive's Phantom Stock Account are described in the Stock Incentive
Plan.
(b) During the Term of Employment and to the extent eligible, the
Executive shall participate in all incentive, pension, retirement, savings
and other employee benefit plans and programs, if any, generally maintained
from time to time by the Corporation for the benefit of senior executives
and other employees of the Corporation.
5.4 HEALTH AND WELFARE BENEFIT PLANS. During the Term of Employment and
to the extent eligible, the Executive shall participate in and be covered by all
the health and welfare benefit plans and programs, if any, generally maintained
by the Corporation for the benefit of senior executives and other employees of
the Corporation.
5.5 EXPENSE REIMBURSEMENT. During the Term of Employment, the Executive
shall be entitled to receive prompt reimbursement for all expenses incurred by
the Executive in performing his duties and responsibilities hereunder in
accordance with the policies and procedures of the Corporation as in effect at
the time the expense was incurred, as the same may be changed from time to time.
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5.6 VACATION, HOLIDAYS OR TEMPORARY LEAVE. The Executive shall be
entitled to take four (4) weeks of vacation per year, without loss or diminution
of compensation. Such vacation shall be taken at such time or times consistent
with the needs of the Corporation's business. The Employee shall further be
entitled to the number of paid holidays and leaves for illness or temporary
disability in accordance with the Corporation's policies as such policies may be
amended from time to time or terminated in the Corporation's sole discretion.
5.7 AUTOMOBILE ALLOWANCE. The Corporation shall provide the Executive
with one automobile allowance of a make and model similar to an automobile the
Executive is currently receiving, such determination to be made in the
Corporation's sole discretion.
6. TERMINATION.
6.1 TERMINATION DUE TO DEATH OR DISABILITY. In the event of the
Executive's death or Disability during the Term of Employment, the Term of
Employment shall thereupon end and, along with any payments under Section 9.4
that the Executive, his estate or other legal representative may be entitled to,
the Executive, his estate or other legal representative, as the case may be,
shall only be entitled to:
(a) Base Salary up to and including the date of termination;
(b) any prior fiscal year Annual Bonus actually awarded, but not yet
paid as of the date of termination, plus the Retention Bonus (if death or
Disability occurs during the Initial Term);
(c) reimbursement for all expenses (under Section 5.5) incurred as of
the date of termination, but not yet paid as the date of termination; and
(d) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans, programs
or agreements, if any, of the Corporation or any of its Affiliates.
Each of the amounts described in Section 6.1(a) and (b) will be payable to the
Executive (or his estate in the case of his death or his legal guardian in the
case of his Disability) in a lump sum within fifteen (15) business days after
the end of the date the Executive's employment is terminated due to death or
Disability, and any amount described in Section 6.1(c) will be payable in a lump
sum within fifteen (15) business days after the Executive (or his estate or
legal guardian) submits proper documentation of such expenses.
6.2 TERMINATION BY THE CORPORATION FOR CAUSE; VOLUNTARY TERMINATION BY
THE EXECUTIVE OTHER THAN FOR GOOD REASON. The Corporation may terminate the
Executive's employment hereunder for Cause, or the Executive may voluntarily
terminate employment with the Corporation upon thirty (30) days' prior written
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notice to the Corporation other than for Good Reason. If the Corporation
terminates the Executive's employment hereunder for Cause or the Executive
voluntarily terminates his employment other than for Good Reason hereunder
during the Term of Employment, the Term of Employment shall thereupon end as set
forth below and, along with any payments under Section 9.4 that the Executive
may be entitled to, the Executive shall only be entitled to:
(a) Base Salary up to and including the date of termination;
(b) any prior fiscal year Annual Bonus actually awarded, but not yet
paid as of the date of termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as of
the date of termination, but not yet paid as of the date of termination;
and
(d) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans, programs
or agreements, if any, of the Corporation or any of its Affiliates.
Each of the amounts described in Section 6.2(a) and (b) will be payable to the
Executive in a lump sum within fifteen (15) business days after the end of the
date the Executive's employment is terminated for Cause or the Executive
voluntarily terminates his employment with the Corporation, and any amount
described in Section 6.2(c) will be payable in a lump sum within fifteen (15)
business days after the Executive submits proper documentation of such expenses.
6.3 TERMINATION BY THE CORPORATION WITHOUT CAUSE OR BY THE EXECUTIVE
FOR GOOD REASON. Upon 30 days prior written notice to the Executive, the
Corporation may terminate the Executive's employment hereunder without Cause or
the Executive may terminate his employment hereunder for Good Reason. If the
Corporation terminates the Executive's employment hereunder without Cause (other
than due to death or Disability or the expiration of the Term of Employment) or
the Executive terminates his employment hereunder for Good Reason during the
Term of Employment, the Term of Employment shall thereupon end and, along with
any payments under Section 9.4 that the Executive may be entitled to, the
Executive shall only be entitled to:
(a) in lieu of any further salary and annual bonus payments to the
Executive for periods subsequent to the date of termination, the
Corporation shall pay to the Executive a lump sum severance payment, in
cash, equal to the sum of the remaining Base Salary payments and any Annual
Bonus payments (assuming in each case the maximum Annual Bonus payout) the
Executive would have earned hereunder had he worked during the balance of
the Initial Term (or, if applicable, during the balance of any Renewal
Term) plus the Retention Bonus (if terminated during the Initial Term);
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(b) any Base Salary accrued or any prior fiscal year Annual Bonus
actually awarded, but not yet paid as of the date of termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as of
the date of termination, but not yet paid as of the date of termination;
(d) continuation of the health and welfare benefits of the Executive,
at the level in effect (as provided for by Section 5.4 of this Agreement)
on the date of termination for the remainder of the Term of Employment; and
(e) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans, programs
or agreements, if any, of the Corporation or any of its Affiliates.
Each of the amounts described in Section 6.3(a) and (b) will be payable to the
Executive in a lump sum within fifteen (15) business days after the end of the
date the Executive's employment is terminated by the Corporation without Cause
or by the Executive for Good Reason, and any amount described in Section 6.3(c)
will be payable in a lump sum within fifteen (15) business days after the
Executive submits proper documentation of such expenses.
The Corporation's obligation to make the payment pursuant to this
Section 6.3 shall be conditioned upon the Corporation's prior receipt of an
executed general release of claims and covenant not to sue.
6.4 NO MITIGATION; NO OFFSET. In the event of any termination of
employment under this Section 6, the Executive shall be under no obligation to
seek other employment and there shall be no offset against any amounts due the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that the Executive may obtain. Any amounts due under
this Section 6 are in the nature of severance payments, or liquidated damages,
or both, and are not in the nature of a penalty.
6.5 STATEMENTS BY THE EXECUTIVE. Subject to the requirements of any
applicable securities or other laws or as may otherwise be required in the
performance of his duties hereunder, the Executive agrees that, during and after
the Term of Employment, he shall not at any time make any statement or
representation, written or oral, which the Executive knows or should know will,
or which he knows or should know is reasonably likely to, impair or adversely
affect in any way the reputation, good will, business, customer or supplier
relationships, or public relations of the Corporation, Carson Products, any
Parent, any Subsidiary, any Affiliate, and/or any person or entity which the
Executive knows or should know is one of the following: (i) a member of the
boards of directors of the Corporation, Carson Products, any Parent, any
Affiliate and/or any Subsidiary, (ii) an employee of the Corporation, Carson
Products, any Parent, any Affiliate and/or any Subsidiary, (iii) a person or
entity who has or has had a legal or beneficial ownership interest in the shares
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of the Corporation, Carson Products, any Parent, any Subsidiary and/or any
Affiliate (an "Owner"), and/or (iv) an owner, employee, director, partner,
representative of, and/or adviser to, any such Owner.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided or maintained by the
Corporation and/or Carson Products and for which the Executive may be eligible
and qualify, nor shall anything herein limit or otherwise prejudice such rights
as the Executive may have under any future agreements with the Corporation,
Carson Products and/or any Affiliate.
8. RESOLUTION OF DISPUTES. With the exception of proceedings for
equitable relief brought pursuant to Section 9.5 of this Agreement or otherwise,
any disputes arising under or in connection with this Agreement, including,
without limitation, any assertion by any party hereto that the other party has
breached any provision of this Agreement, shall be resolved by arbitration, to
be held in New York, New York (or such other location as the Corporation and the
Executive shall agree to in writing), in accordance with the rules and
procedures of the American Arbitration Association.
9. CONFIDENTIAL INFORMATION AND NONCOMPETITION.
9.1 CONFIDENTIAL INFORMATION. The Executive shall not, during the Term
of Employment, during the Restriction Period and at any time thereafter, without
the prior express written consent of the Board, directly or indirectly, use any
Confidential Information (as defined below) in any way, or divulge, disclose or
make available or accessible any Confidential Information to any person, firm,
partnership, corporation, trust or any other entity or third party (other than
when required to do so in good faith to perform the Executive's duties and
responsibilities under this Agreement or when required to do so by a lawful
order of a court of competent jurisdiction). In addition, the Executive shall
not create any derivative work or other product based on or resulting from any
Confidential Information (except in the good faith performance of his duties
under this Agreement). The Executive shall also immediately notify the Board if
he becomes aware of any material unauthorized use or disclosure of any material
Confidential Information by any third party, and the Executive agrees to
cooperate fully in any attempts or efforts by the Corporation, Carson Products
or any Affiliate to obtain any relief or remedy in respect of such unauthorized
use or disclosure. The Executive shall also proffer to the Board's designee,
immediately upon any termination of his employment with the Corporation for any
reason, and without retaining any copies, notes or excerpts thereof, all
memoranda, computer disks or other media, computer programs, dairies, notes,
records, data, customer or client lists, marketing plans and strategies, and any
other documents consisting of or containing any Confidential Information that
are in the Executive's actual or constructive possession or which are subject to
his control at such time. In addition, the Executive shall at all times use his
best efforts carefully to safeguard any Confidential Information in the
Executive's possession or under his control. For purposes of this Agreement,
"Confidential Information" shall mean all information respecting the business
and activities of the Corporation, Carson Products, any Parent and/or any
Subsidiary, including, without limitation, the terms and provisions of this
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Agreement, the clients, customers, suppliers, employees, consultants, computer
or other files, projects, products, computer disks or other media, computer
hardware or computer software programs, marketing plans, financial information,
methodologies, know-how, processes, practices, approaches, projections,
forecasts, formats, systems, data gathering methods and/or strategies of the
Corporation, Carson Products, any Parent and/or any Subsidiary. Notwithstanding
the immediately preceding sentence, Confidential Information shall not include
any information that is, or becomes, generally available to the public (unless
such availability occurs as a result of the Executive's breach of any portion of
this Section 9.1 or any other obligation the Executive owes to the Corporation,
any Parent and/or any Subsidiary).
9.2 NONCOMPETITION. During the Term of Employment and during the
Restriction Period, the Executive shall not, directly or indirectly, within any
geographic area in which the Corporation or its Affiliates are doing business
(a) engage, without the prior express written consent of the Corporation, in any
business or activity, including but not limited to the manufacturing,
production, importation, distribution or sales of any cosmetic, fragrance or
hair care products, whether as an employee, consultant, partner, principal,
agent, representative, stockholder or in any other individual, corporate or
representative capacity, or render any services or provide any advice to any
business, activity, person or entity, with respect to any of its activities
that, directly or indirectly, compete in any material manner with (i) the
Corporation, (ii) Carson Products, (iii) any Parent or Subsidiary, or (iv) any
product, service or other business of any such entities which is in production,
distribution or development as of the date of termination, and/or (b)
meaningfully assist, help or otherwise support, without the prior express
written consent of the Corporation, Carson Products, any person, business,
corporation, partnership or other entity or activity, whether as an employee,
consultant, partner, principal, agent, representative, stockholder or in any
other individual, corporate or representative capacity, to create, commence or
otherwise initiate, or to develop, enhance or otherwise further, any business or
activity if such business or activity, directly or indirectly, competes (or is
reasonably likely to compete) in any manner with any significant business or
activity of the Corporation, Carson Products or any Parent or Subsidiary;
provided, however, that in the event the Executive voluntarily terminates
employment (other than due to Disability or for Good Reason) with the
Corporation during the Initial Term, the Corporation may, in its sole
discretion, elect to waive the Executive's obligations under this Section 9.2,
in which case the Corporation shall not be liable to pay the Executive any
compensation as described in Section 9.4 of the Agreement during the Restriction
Period.
9.3 NONSOLICITATION. Other than in the performance of his duties with
the Corporation, the Executive, during the Term of Employment and during the
Restriction Period, shall not, directly or indirectly, (a) take any action to
solicit or divert any business or clients or customers (or potential clients or
potential customers) away from the Corporation, Carson Products or any Parent or
Subsidiary, (b) induce customers, potential customers, clients, potential
clients, suppliers, agents or other persons under contract or otherwise
associated or doing business with the Corporation, Carson Products or any Parent
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or Subsidiary to terminate, reduce or alter any such association or business
with or from the Corporation, Carson Products or any Parent or Subsidiary,
and/or (c) induce any person in the employment of the Corporation, Carson
Products or any Parent or Subsidiary or any consultant to the Corporation,
Carson Products or any Parent or Subsidiary to (i) terminate such employment, or
consulting arrangement, (ii) accept employment, or enter into any consulting
arrangement, with anyone other than the Corporation, Carson Products or any
Parent or Subsidiary, and/or (iii) interfere with the customers, suppliers, or
clients of the Corporation, Carson Products, any Subsidiary, any Parent or any
Affiliate in any manner or the business of the Corporation, Carson Products, any
Subsidiary, any Parent or any Affiliate in any manner. For purposes of this
Section 9.3, a "potential client" or a "potential customer" shall mean a person
or entity that the Corporation, Carson Products, any Parent or any Subsidiary
(A), as of the date of the Executive's employment terminates, is, or has
expended time or resources which are not insignificant in amount or kind in,
soliciting or is in preparation for soliciting, and/or (B) has, at any time or
from time to time, within the 12 month period prior to the date the Executive's
employment terminates, been soliciting for or in respect of any current,
actively pending or contemplated product lines, businesses, or services offered
by the Corporation, Carson Products, any Parent or any Subsidiary, including,
without limitation, any marketing arrangements, licensing arrangements,
manufacturing arrangements, and/or distribution arrangements (the "Products").
9.4 RESTRICTION PERIOD COMPENSATION. In consideration of the Executive
being subject to the restrictions contained in Section 9.2 of this Agreement and
subject to the obligations contained in this Section 9.4 of this Agreement, the
Corporation shall pay to the Executive, (i) during the first two years of the
Restriction Period an annual payment equal to $500,000 per annum and (ii) during
the last year of the Restriction Period an annual payment equal to $400,000 per
annum, with the first annual payment to be payable in a lump sum on the first
anniversary of the commencement of the Restriction Period, the second annual
payment to be payable in a lump sum on the second anniversary of the
commencement of the Restriction Period and the third annual payment to be
payable in a lump sum on the third anniversary of the commencement of the
Restriction Period. In the event of the Executive's death during any year of the
Restriction Period, the Corporation shall pay to the Executive only the pro rata
portion of the annual payment due for such year of the Restriction Period. At
the request of the Corporation and subject to the express, written consent of
the Executive, the Executive shall be available to perform consulting services
on behalf of the Corporation or its Affiliates for a period of not more than six
weeks (in the aggregate) per annum for each year during the Restriction Period.
Notwithstanding the above, in the event the Executive voluntarily terminates
employment (other than due to Disability or for Good Reason) with the
Corporation during the Initial Term, the Corporation may, in its sole
discretion, elect to waive the Executive's obligations under Section 9.2 of this
Agreement, in which case the Corporation shall not be liable to pay the
Executive any compensation described in this Section 9.4 for the Restriction
Period. Any payments to the Executive under Section 9.4 of this Agreement shall
be in addition to any other payments or benefits which Executive may receive
under Sections 6.1, 6.2 or 6.3 of this Agreement.
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9.5 INJUNCTIVE RELIEF. The Executive acknowledges and agrees that the
Corporation will have no adequate remedy at law, and would be irreparably
harmed, if the Executive breaches or threatens to breach any of the provisions
of this Section 9 of this Agreement. The Executive agrees that the Corporation
shall be entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of this Section 9, and to specific performance of each of the
terms of such Section in addition to any other legal or equitable remedies that
the Corporation may have. The Executive further agrees that he shall not, in any
equity proceeding relating to the enforcement of the terms of this Section 9,
raise the defense that the Corporation has an adequate remedy at law.
9.6 SPECIAL SEVERABILITY. The terms and provisions of this Section 9
are intended to be separate and divisible provisions and if, for any reason, any
one or more of them is held to be invalid or unenforceable, neither the validity
nor the enforceability of any other provision of this Agreement shall thereby be
affected. It is the intention of the parties to this Agreement that the
potential restrictions on the Executive's future employment imposed by this
Section 9 be reasonable in both duration and geographic scope and in all other
respects. If for any reason any court of competent jurisdiction shall find any
provisions of this Section 9 unreasonable in duration or geographic scope or
otherwise, the Executive and the Corporation agree that the restrictions and
prohibitions contained herein shall be effective to the fullest extent allowed
under applicable law in such jurisdiction.
10. SUCCESSORS.
10.1 THE EXECUTIVE. This Agreement is personal to the Executive and,
without the prior express written consent of the Corporation, shall not be
assignable by the Executive, except that the Executive's rights to receive any
compensation or benefits under this Agreement may be transferred or disposed of
pursuant to testamentary disposition, intestate succession or pursuant to a
qualified domestic relations order. This Agreement shall inure to the benefit of
and be enforceable by the Executive's heirs, beneficiaries and/or legal
representatives.
10.2 THE CORPORATION. This Agreement shall inure to the benefit of and
be binding upon the Corporation and its successors and assigns. The Corporation
shall use its reasonable best efforts to obtain from any successor to all or
substantially all of its business and/or assets, whether direct or indirect, by
purchase, merger, consolidation, acquisition of stock, or otherwise, an
assumption by such successor of the obligations of the Corporation under this
Agreement.
11. MISCELLANEOUS.
11.1 APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
principles of conflict of laws.
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11.2 AMENDMENTS/WAIVER. This Agreement may not be amended, waived, or
modified otherwise than by a written agreement executed by the parties to this
Agreement or their respective successors and legal representatives. No waiver by
any party to this Agreement of any breach of any term, provision or condition of
this Agreement by the other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, or any prior or subsequent
time.
11.3 NOTICES. All notices and other communications hereunder shall be
in writing and shall be given by hand-delivery to the other party, by facsimile
transmission, by overnight courier, or by registered or certified mail, return
receipt request, postage prepaid, addressed as follows:
If to the Executive: Mr. Malcolm Yesner
c/o Carson, Inc.
64 Ross Road
Savanna, Georgia 31405
with a copy to: Dennis J. Friedman, Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
If to the Corporation: Cosmair, Inc.
575 Fifth Avenue
New York, NY 10017
Attention: John D. Sullivan, Esq.
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
11.4 WITHHOLDING. The Corporation may withhold from any amounts payable
under this Agreement such taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
11.5 SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
11.6 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties to this Agreement concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties (including any
Affiliates) with respect thereto including, but not limited to, upon the
Commencement Date, the Amended and Restated Employment Agreement, dated as of
November 1, 1999, between Carson and the Executive and the Noncompetition
Agreement, dated as of November 1, 1999, between Carson and the Executive.
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11.7 SURVIVORSHIP. The respective rights and obligations of the parties
to this Agreement shall survive any termination of this Agreement or the
Executive's employment hereunder for any reason.
11.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and the Corporation has caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
COSMAIR, INC.
By: /s/ Roger Dolden
---------------------------------------
Name: Roger Dolden
Title: Executive Vice President
Chief Administrative Officer
/s/ Malcolm Yesner
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Malcolm Yesner
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