Exhibit 10.47
MANAGEMENT STOCK OPTION AGREEMENT - SERVICE OPTION
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MANAGEMENT STOCK OPTION AGREEMENT, dated as of ________, 2002, between
RACI Holding, Inc., a Delaware corporation (the "Holding"), and the Grantee
whose name appears on the signature page hereof (the "Grantee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Board of Directors of Holding (the "Board") approved the
grant to the Grantee of nonqualified stock options to purchase shares of Class A
Common Stock, par value $.01 per share ("Common Stock"), of Holding set forth on
the signature page hereof (each, a "Share" and, collectively, the "Shares")
pursuant to the 1999 RACI Holding, Inc. Stock Incentive Plan (the "Plan"), at an
exercise price of $________ per Share by unanimous written consent dated
February 15, 2002 (the "Grant Date"); and
WHEREAS, the Grantee and Holding desire to enter into an agreement to
evidence and confirm the grant of such options on the terms and conditions set
forth herein;
NOW, THEREFORE, to evidence the stock options so granted, and to set
forth the terms and conditions thereof, Holding and the Grantee hereby agree as
follows:
1. Confirmation of Grant; Option Price. Holding hereby evidences and
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confirms its grant to the Grantee, effective as of the Grant Date, of options
(the "Options") to purchase the Shares at an option price of $________ per share
(as adjusted from time to time pursuant to Section 10, the "Option Price"). The
Options are not intended to be incentive stock options under the U.S. Internal
Revenue Code of 1986, as amended. This Agreement is subordinate to, and the
terms and conditions of the Options granted hereunder are subject to, the terms
and conditions of the Plan.
2. Exercisability. Except as otherwise provided in this Agreement, the
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Options shall become vested and exercisable in three equal installments, on each
of the first, second and third anniversaries of the Grant Date, subject in the
case of each such installment to the continued employment of the Grantee until
the applicable vesting date; provided that the Board may accelerate the
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exercisability of any Option, all Options or any class of Options, at any time
and from time to time. Shares eligible for purchase pursuant to vested and
exercisable Options may be purchased, subject to the provisions hereof, and
pursuant to and subject to the provisions contained in the Management Stock
Subscription Agreement (as defined in Section 5) related to such Shares, at any
time and from time to time on or after the date the related Options become
vested and exercisable until the date one day prior to the date on which such
Options terminate.
3. Termination of Option.
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(a) Normal Termination Date. Unless an earlier termination date is
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specified in Section 3(b), the Options shall terminate on the tenth anniversary
of the date hereof (the "Normal Termination Date").
(b) Early Termination. If the Grantee's Active Employment (as defined
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below) is voluntarily or involuntarily terminated for any reason other than a
Special Termination (as defined below) prior to the Normal Termination Date, any
Options that have not become vested and exercisable on or before the effective
date of such termination of employment shall terminate on such effective date.
If the Grantee's Active Employment is terminated by reason of the Grantee's
death, Permanent Disability or Retirement (each a "Special Termination"), then
all Options held by the Grantee shall become immediately vested and exercisable
and shall remain exercisable until the first to occur of (A) the 180th day
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following the effective date of such Special Termination or (B) the Normal
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Termination Date. If the Grantee's Active Employment is terminated for any
reason other than (i) a Special Termination or (ii) for Cause, any vested and
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exercisable Options then held by the Grantee shall remain exercisable until the
first to occur of (x) the 60th day following the effective date of such
termination of employment or (y) the Normal Termination Date. Notwithstanding
anything else contained in this Agreement, if the Grantee's Active Employment is
terminated for Cause, then all Options (whether or not then vested or
exercisable) shall terminate and be canceled immediately upon such termination,
regardless of whether then vested or exercisable. Nothing in this Agreement
shall be deemed to confer on the Grantee any right to continue in the employment
of the Company or any of its direct or indirect subsidiaries, or to interfere
with or limit in any way the right of the Company or any of such subsidiaries to
terminate the Grantee's employment at any time.
4. Restrictions on Exercise; Non-Transferability of Option.
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(a) Restrictions on Exercise. The Options may be exercised only with
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respect to full shares of Common Stock. No fractional shares of Common Stock
shall be issued. Notwithstanding any other provision of this Agreement, the
Options may not be exercised in whole or in part, and no certificates
representing Shares shall be delivered, (i) unless all requisite approvals and
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consents of any governmental authority of any kind having jurisdiction over the
exercise of the Options shall have been secured, (ii) unless the purchase of the
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Shares upon the exercise of the Options shall be exempt from registration under
applicable U.S. federal and state securities laws, or the Shares shall have been
registered under such laws, (iii) unless all applicable U.S. federal, state and
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local and non-U.S. tax withholding requirements shall have been satisfied or
(iv) if such exercise would cause a change in control of Holding and thereby
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result in a violation of the terms or provisions of or a default or an event of
default under any of the Financing Agreements (as such term is defined below).
Holding shall use reasonable best efforts to obtain the consents and approvals
referred to in the clause of the preceding sentence.
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(b) Non-Transferability of Options. The Options may be exercised only
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by the Grantee or by the Grantee's estate. The Options are not assignable or
transferable, in whole or in part, and they may not, directly or indirectly, be
offered, transferred, sold, pledged, assigned, alienated, hypothecated or
otherwise disposed of or encumbered (including without limitation by gift,
operation of law or otherwise) other than by will or by the laws of descent and
distribution to the estate of the Grantee upon the Grantee's death, provided
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that the deceased Grantee's beneficiary or the representative of the Grantee's
estate shall acknowledge and agree in writing, in a form reasonably acceptable
to Holding, to be bound by the provisions of this Agreement and the Plan as if
such beneficiary or the estate were the Grantee.
(c) Certain Definitions. As used in this Agreement the following terms
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shall have the following meanings:
(i) "Active Employment" shall mean the Grantee's active
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employment with the Company or any Subsidiary.
(ii) "C&D Fund" shall mean The ▇▇▇▇▇▇▇ & Dubilier Private Equity
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Fund IV Limited Partnership, a Connecticut limited partnership, together
with any successor investment vehicle managed by ▇▇▇▇▇▇▇, Dubilier & Rice,
Inc.
(iii) "Cause" shall mean (A) the willful failure by the Grantee
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to perform substantially his duties as an employee of the Company or any
Subsidiary (other than any such failure due to physical or mental illness)
after a demand for substantial performance is delivered to the Grantee by
the executive to whom the Grantee reports or by the Board, which notice
identifies the manner in which such executive or the Board, as the case
may be, believes that the Grantee has not substantially performed his
duties, (B) the Grantee's engaging in willful and serious misconduct that
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is injurious to the Company or any Subsidiary, (C) the Grantee's having
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been convicted of, or entered a plea of guilty or nolo contendere to, a
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crime that constitutes a felony, (D) the willful and material breach by
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the Grantee of any written covenant or agreement with the Company or any
Subsidiary not to disclose any information pertaining to the Company or
any Subsidiary or not to compete or interfere with the Company or any
Subsidiary or (E) the breach by the Grantee of his obligations pursuant to
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the "take-along" provisions set forth in any Management Stock Subscription
Agreement to which he is or becomes a party.
(iv) "Company" shall mean Remington Arms Company, Inc., a
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Delaware corporation formerly named RACI Acquisition Corporation, and any
successor thereto.
(v) "Public Offering" shall mean consummation of an underwritten
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public offering in the United States of the Common Stock led by one or
more
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underwriters at least one of which is an underwriter of nationally recognized
standing.
(vi) "Financing Agreement" shall mean the Amended and Restated
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Credit Agreement, dated as of April 28, 2000, as amended (the "Credit
Agreement"), among the Company, The Chase Manhattan Bank ("Chase"), as
administrative agent, Bank of America, N.A., as syndication agent, ▇▇▇▇▇▇▇
▇▇▇▇▇ Credit Partners, L.P., as documentation agent, and the other banks
and financial institutions party thereto from time to time; the Guarantee,
dated as of April 28, 2000 (the "Guarantee"), made by Holding, as
Guarantor, in favor of Chase as administrative agent for the several banks
and other financial institutions named thereunder; the Indenture, dated as
of November 30, 1993, (the "Indenture") among Holding, as guarantor, and
First Trust National Association, as Trustee; or any other financing or
security agreement or document entered into in connection with the
acquisition by Holding of substantially all the assets of Sporting Goods
Properties, Inc. ("Sporting Goods") and certain related assets of Sporting
Goods' parent E.I. du Pont de Nemours and Company ("DuPont"), from
Sporting Goods and DuPont, on December 1, 1993 (the "Acquisition"), or the
financing of the Acquisition, or in connection with the Credit Agreement,
or in connection with the operations of Holding or its subsidiaries from
time to time, in each case as the same may be amended, modified or
supplemented from time to time.
(vii) "Permanent Disability" shall mean a physical or mental
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disability or infirmity that prevents the performance of the Grantee's
employment-related duties lasting (or likely to last, based on competent
medical evidence presented to the Board) for a continuous period of six
months or longer. The Board's reasoned and good faith judgment of
Permanent Disability shall be final, binding and conclusive on all parties
hereto and shall be based on such competent medical evidence as shall be
presented to it by the Grantee or by any physician or group of physicians
or other competent medical expert employed by the Grantee or Holding to
advise the Board.
(viii) "Retirement" shall mean the Grantee's retirement from
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Active Employment at age 65 or later.
(ix) "Subsidiary" shall mean any corporation, a majority of
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whose outstanding voting securities is owned, directly or indirectly, by
Holding.
(d) Withholding. Whenever Shares are to be issued pursuant to the
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Options, Holding may require the recipient of the Shares to remit to Holding an
amount sufficient to satisfy any applicable U.S. federal, state and local and
non-U.S. tax withholding requirements. In the event any cash is paid to the
Grantee or the Grantee's estate or beneficiary pursuant to this Agreement,
Holding shall have the right to withhold (or, if applicable, to direct the C&D
Fund to remit to Holding) an amount from such payment
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sufficient to satisfy any applicable U.S. federal, state and local and non-U.S.
tax withholding requirements.
5. Manner of Exercise. To the extent that any of the Options shall have
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become and remain exercisable as provided in Section 2 and subject to such
reasonable administrative regulations as the Board may have adopted, the Options
may be exercised, in whole or in part, by notice to the Secretary of Holding in
writing given 15 business days prior to the date on which the Grantee will so
exercise the Options (the "Exercise Date"), specifying the number of Shares with
respect to which the Options are being exercised (the "Exercise Shares") and the
Exercise Date, provided that if shares of Common Stock are traded on a U.S.
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national securities exchange or bid and ask prices for shares of Common Stock
are quoted over NASDAQ, notice may be given five business days before the
Exercise Date. On or before any Exercise Date occurring prior to a Public
Offering, Holding and the Grantee shall enter into a Management Stock
Subscription Agreement substantially in the form attached to the Plan as Exhibit
B-1 ("Management Stock Subscription Agreement"), or in such other form as may be
approved by Holding, such Management Stock Subscription Agreement to contain
provisions granting the issuer and its majority shareholder the right to
purchase the Exercised Shares following termination of employment, take-along
rights and other legal and contractual restrictions. In addition, (a) on or
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before the Exercise Date, the Grantee shall deliver to Holding full payment for
the Exercise Shares in United States dollars in cash, or cash equivalent
satisfactory to Holding, and in an amount equal to the product of the number of
Exercise Shares and the Option Price and (b) on the Exercise Date, subject to
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any bailment arrangement agreed to by Holding and the Grantee, Holding shall
deliver to the Grantee a certificate or certificates representing the Exercise
Shares, registered in the name of the Grantee. If shares of Common Stock are
traded on a U.S. national securities exchange or bid and ask prices for shares
of Common Stock are quoted over NASDAQ, the Grantee may, in lieu of cash, tender
shares of Common Stock that have been owned by the Grantee for a minimum period
of six months, having a market price on the Exercise Date equal to the Exercise
Price or may deliver a combination of cash and such shares of Common Stock
having a market price equal to the difference between the Exercise Price and the
amount of such cash as payment of the Exercise Price, subject to such rules and
regulations as may be adopted by the Board to provide for the compliance of such
payment procedure with applicable law, including Section 16(b) of the Exchange
Act. Holding may require the Grantee to furnish or execute such other documents
as Holding shall reasonably deem necessary (i) to evidence such exercise, (ii)
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to determine whether registration is then required under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), and (iii) to comply with or satisfy
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the requirements of the Securities Act, applicable state or non-U.S. securities
laws or any other law.
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6. Grantee's Representations, Warranties and Covenants.
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(a) Investment Intention. The Grantee represents and warrants that the
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Options have been, and covenants that any Exercise Shares will be, acquired by
the Grantee solely for the Grantee's own account for investment and not with a
view to or for sale in connection with any distribution thereof. The Grantee
agrees that the Grantee will not, directly or indirectly, offer, transfer, sell,
pledge, hypothecate or otherwise dispose of all or any of the Options or any of
the Exercise Shares (or solicit any offers to buy, purchase or otherwise acquire
or take a pledge of all or any of the Options or any of the Exercise Shares),
except in compliance with the Securities Act and the rules and regulations of
the Securities and Exchange Commission (the "Commission") thereunder, and in
compliance with applicable state and foreign securities or "blue sky" laws. The
Grantee further understands, acknowledges and agrees that none of the Exercise
Shares may be transferred, sold, pledged, hypothecated or otherwise disposed of
unless the provisions of any related Management Stock Subscription Agreement
shall have been complied with or have expired.
(b) Legend. The Grantee acknowledges that any certificate representing the
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Exercise Shares shall bear an appropriate legend, which will include, without
limitation, the following language in the case of any such certificates issued
prior to a Public Offering:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A MANAGEMENT STOCK SUBSCRIPTION AGREEMENT, DATED AS OF
________,_____, AND NEITHER THIS CERTIFICATE NOR THE SHARES REPRESENTED
BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF SUCH MANAGEMENT STOCK SUBSCRIPTION AGREEMENT, AS
THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE ISSUER. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE BOUND BY THE OBLIGATIONS SET FORTH IN AND MAY BE
ENTITLED TO SOME OF THE BENEFITS OF A REGISTRATION AND PARTICIPATION
AGREEMENT, DATED AS OF NOVEMBER 30, 1993, AMONG THE ISSUER AND CERTAIN
STOCKHOLDERS OF THE ISSUER A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE ISSUER."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE OR FOREIGN
SECURITIES LAWS AND MAY NOT BE TRANSFERRED,
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SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) (A)
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SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (B) THE HOLDER HEREOF
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SHALL HAVE DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH
OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE ISSUER,
TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF SUCH ACT OR (C) A NO-ACTION LETTER FROM THE SECURITIES
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AND EXCHANGE COMMISSION, REASONABLY SATISFACTORY TO COUNSEL FOR
HOLDING, SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION
AND (ii) SUCH DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY
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APPLICABLE STATE OR FOREIGN SECURITIES LAWS OR AN EXEMPTION
THEREFROM.
(c) Securities Law Matters. The Grantee acknowledges receipt of advice
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from Holding that (i) the Exercise Shares have not been registered under the
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Securities Act based on an exemption provided under Rule 701 promulgated under
the Securities Act or qualified under any state or foreign securities or "blue
sky" laws, (ii) it is not anticipated that there will be any public market for
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the Exercise Shares, (iii) the Exercise Shares must be held indefinitely and the
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Grantee must continue to bear the economic risk of the investment in the
Exercise Shares unless the Exercise Shares are subsequently registered under the
Securities Act and such state laws or an exemption from registration is
available, (iv) Rule 144 promulgated under the Securities Act ("Rule 144") is
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not presently available with respect to the sales of the Exercise Shares and
Holding has made no covenant to make Rule 144 available, (v) when and if the
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Exercise Shares may be disposed of without registration in reliance upon Rule
144, such disposition can be made only in accordance with the terms and
conditions of such Rule, (vi) Holding does not plan to file reports with the
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Commission or make public information concerning Holding available unless
required to do so by law or by the terms of its Financing Agreements (as
hereinafter defined), (vii) if the exemption afforded by Rule 144 is not
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available, sales of the Exercise Shares may be difficult to effect because of
the absence of public information concerning Holding, (viii) a restrictive
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legend in the form heretofore set forth shall be placed on the certificates
representing the Exercise Shares and (ix) a notation shall be made in the
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appropriate records of Holding indicating that the Exercise Shares are subject
to restrictions on transfer set forth in this Agreement and, if Holding should
in the future engage the services of a stock transfer agent, appropriate
stop-transfer restrictions will be issued to such transfer agent with respect to
the Exercise Shares.
(d) Compliance with Rule 144. If any of the Exercise Shares are to be
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disposed of in accordance with Rule 144 under the Securities Act, the Grantee
shall transmit to Holding an executed copy of Form 144 (if required by Rule 144)
no later than the time such form is required to be transmitted to the Commission
for filing and such
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other documentation as Holding may reasonably require to assure compliance with
Rule 144 in connection with such disposition.
(e) Ability to Bear Risk. The Grantee covenants that the Grantee will not
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exercise all or any of the Options unless (i) the financial situation of the
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Grantee is such that the Grantee can afford to bear the economic risk of Holding
the Exercise Shares for an indefinite period and (ii) the Grantee can afford to
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suffer the complete loss of the Grantee's investment in the Exercise Shares.
(f) Access to Information. The Grantee represents and warrants that the
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Grantee has received the Confidential Offering Memorandum dated February 15,
2002, the Company's Annual Report on Form 10-K for the year ended December 31,
2000 and the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 2001, and has carefully reviewed the Offering Memorandum together
with the Annexes thereto, including but not limited to the Plan and such other
materials furnished to the Grantee in connection with the transaction
contemplated hereby.
(g) Registration; Restrictions on Sale upon Public Offering. In respect of
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any Shares purchased upon exercise of all or any of the Options, the Grantee
shall be entitled to the rights and subject to the obligations created under the
Registration and Participation Agreement, dated as of November 30, 1993 as the
same may be amended, modified or supplemented from time to time (the
"Registration and Participation Agreement"), among Holding and certain
stockholders of Holding, to the extent set forth therein. The Grantee agrees
that, in the event that Holding files a registration statement under the
Securities Act with respect to a Public Offering of any shares of its capital
stock, the Grantee will not effect any public sale or distribution of any shares
of the Common Stock (other than as part of such Public Offering) during the 20
days prior to and the 180 days after the effective date of such registration
statement.
(h) Section 83(b) Election. The Grantee agrees that, within 20 days of any
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Exercise Date that occurs prior to a Public Offering, the Grantee shall give
notice to Holding as to whether or not the Grantee has made an election pursuant
to Section 83(b) of the Internal Revenue Code of 1986, as amended, with respect
to the Exercise Shares purchased on such date, and acknowledges that the Grantee
will be solely responsible for any and all tax liabilities payable by the
Grantee in connection with the Grantee's exercise of any Options or receipt of
the Exercise Shares or attributable to the Grantee's making or failing to make
such an election.
7. Representations and Warranties of Holding. Holding represents and
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warrants to the Grantee that (a) Holding has been duly incorporated and is an
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existing corporation in good standing under the laws of the State of Delaware,
(b) this Agreement has been duly authorized, executed and delivered by Holding
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and constitutes a valid and legally binding obligation of Holding enforceable
against Holding in accordance with its terms and (c) the Exercise Shares, when
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issued, delivered and paid for, upon exercise of the Options in accordance with
the terms hereof and the Management Stock Subscription
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Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and free and clear of any liens or encumbrances other than those
created pursuant to this Agreement, the Management Stock Subscription Agreement
or otherwise in connection with the transactions contemplated hereby.
8. Change in Control
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(a) Accelerated Vesting and Payment. Unless the Board shall otherwise
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determine in the manner set forth in Section 8(b), in the event of a Change in
Control, the Options shall be canceled in exchange for a payment in cash of an
amount equal to the product of (i) the excess, if any, of the Change in Control
-
Price over the Option Price multiplied by (ii) the number of Shares then subject
--
to the Options.
(b) Alternative Options. Notwithstanding Section 8(a), no cancellation,
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acceleration of exercisability, vesting or cash settlement or other payment
shall occur with respect to the Options if the Board reasonably determines in
good faith, prior to the occurrence of a Change in Control, that the Options
shall be honored or assumed, or new rights substituted therefor (such honored,
assumed or substituted Options being hereinafter referred to as an "Alternative
Options") by the New Employer, provided that any such Alternative Options must:
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(i) provide the Grantee with rights and entitlements substantially
equivalent to or better than the rights, terms and conditions applicable
under the Options, including, but not limited to, an identical or better
exercise and vesting schedule, identical or better timing and methods of
payment and, if the Alternative Options or the securities underlying them
are not publicly traded, identical or better rights to require Holding or
the New Employer to repurchase the Alternative Options;
(ii) have substantially equivalent economic value to the Options
(determined at the time of the Change in Control); and
(iii) have terms and conditions which provide that in the event that
the Grantee suffers an Involuntary Termination within two years following
a Change in Control:
(A) any conditions on the Grantee's rights under, or any
restrictions on transfer or exercisability applicable to, each such
Alternative Options shall be waived or shall lapse, as the case may be;
or
(B) the Grantee shall have the right to surrender such
Alternative Options within 30 days following such termination in
exchange for a payment in cash equal to the excess of the Fair Market
Value of the Common Stock subject to the Alternative Options over the
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price, if any, that the Grantee would be required to pay to exercise
such Alternative Options.
(c) Certain Definitions. As used in this Agreement the following terms
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shall have the following meanings:
(i) "Change in Control" means the first to occur of the following
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events after the date hereof:
(A) the acquisition by any person, entity or "group" (as defined
in Section 13(d) of the Securities Exchange Act of 1934, as amended),
other than Holding, any Subsidiary, any employee benefit plan of
Holding or any Subsidiary, or the C&D Fund, of 50% or more of the
combined voting power of Holding's then outstanding voting securities;
(B) the merger or consolidation of Holding as a result of which
persons who were stockholders of Holding, as the case may be,
immediately prior to such merger or consolidation, do not, immediately
thereafter, own, directly or indirectly, more than 50% of the combined
voting power entitled to vote generally in the election of directors
of the merged or consolidated company;
(C) the liquidation or dissolution of Holding or the Company,
other that the liquidation of Holding or the Company into the other;
or
(D) the sale, transfer or other disposition of all or
substantially all of the assets of Holding or the Company to one or
more persons or entities that are not, immediately prior to such sale,
transfer or other disposition, affiliates of the Company or the C&D
Fund.
(ii) "Change in Control Price" means the price per share of Common
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Stock paid in conjunction with any transaction resulting in a Change in
Control (as determined in good faith by the Board if any part of the
offered price is payable other than in cash).
(iii) "Involuntary Termination" means a termination by the New
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Employer for any reason.
(iv) "New Employer" means the Grantee's employer, or the parent or a
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subsidiary of such employer, immediately following a Change in Control.
9. No Rights as Stockholder. The Grantee shall have no voting or other
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rights as a stockholder of Holding with respect to any Shares covered by the
Options until the exercise of the Options and the issuance of a certificate or
certificates to the Grantee
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for such Shares. No adjustment shall be made for dividends or other rights for
which the record date is prior to the issuance of such certificate or
certificates.
10. Capital Adjustments. The number and Option Price of the Shares covered
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by the Options shall be proportionately adjusted to reflect any stock dividend,
stock split or share combination of the Common Stock or any recapitalization of
Holding. Subject to any required action by the stockholders of Holding and
Section 8 hereof, in any merger, consolidation, reorganization, exchange of
shares, liquidation or dissolution, the Options shall pertain to the securities
and other property, if any, that a holder of the number of shares of Common
Stock covered by the Options would have been entitled to receive in connection
with such event.
11. Miscellaneous.
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(a) Notices. All notices and other communications required or permitted to
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be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified or express mail, return
receipt requested, postage prepaid, or by any recognized international
equivalent of such delivery, to Holding, the C&D Fund or the Grantee, as the
case may be, at the following addresses or to such other address as Holding, the
C&D Fund or the Grantee, as the case may be, shall specify by notice to the
others:
(i) if to Holding, to it at:
RACI Holding, Inc.
c/o Remington Arms Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
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(ii) if to the Grantee, to the Grantee at the address set forth on
the signature page hereof.
(iii) if to the C&D Fund, to:
The ▇▇▇▇▇▇▇ & Dubilier Private Equity
Fund IV Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ & Dubilier Associates
--------- IV Limited Partnership,
▇▇▇▇▇▇ ▇. ▇▇▇▇, III
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All such notices and communications shall be deemed to have been received on the
date of delivery or on the third business day after the mailing thereof. Copies
of any notice or other communication given under this Agreement shall also be
given to:
▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
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and
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
---------
The C&D Fund also shall be given a copy of any notice or other communication
between the Grantee and Holding under this Agreement at its address as set forth
above.
(b) Binding Effect; Benefits. This Agreement shall be binding upon and
------------------------
inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Except as provided in Section 4, nothing in this
Agreement, express or implied, is intended or shall be construed to give any
person other than the parties to this Agreement or their respective successors
or assigns any legal or equitable right, remedy or claim under or in respect of
any agreement or any provision contained herein.
(c) Waiver; Amendment.
-----------------
(i) Waiver. Any party hereto or beneficiary hereof may by written
------
notice to the other parties (A) extend the time for the performance of any
---
of the obligations or other actions of the other parties under this
Agreement, (B) waive compliance with any of the conditions or covenants of
---
the other parties contained in this Agreement and (C) waive or modify
---
performance of any of the obligations of the other parties under this
Agreement, provided that any waiver of the second sentence of Section 5
--------
must be consented to in writing by the C&D Fund. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including,
without limitation, any investigation by or on behalf of any party or
beneficiary, shall be deemed to constitute a waiver by the party or
beneficiary taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by any
party hereto or beneficiary hereof of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any preceding or
succeeding breach and no failure by a party or beneficiary to exercise any
right or privilege hereunder shall be deemed a waiver of such party's or
beneficiary's rights or privileges hereunder or shall be
12
deemed a waiver of such party's or beneficiary's rights to exercise the
same at any subsequent time or times hereunder.
(ii) Amendment. This Agreement may not be amended, modified or
---------
supplemented orally, but only by a written instrument executed by the
Grantee and Holding, and (in the case of any amendment modification or
supplement that adversely affects the rights of the C&D Fund hereunder)
consented to by the C&D Fund in writing. The parties hereto acknowledge
that Holding's consent to an amendment or modification of this Agreement
may be subject to the terms and provisions of the Financing Agreements.
(d) Assignability. Neither this Agreement nor any right, remedy,
-------------
obligation or liability arising hereunder or by reason hereof shall be
assignable by Holding or the Grantee without the prior written consent of the
other parties and the C&D Fund. The C&D Fund may assign from time to time all or
any portion of its rights under Section 4 to one or more persons or other
entities designated by it.
(e) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE.
(f) Section and Other Headings, etc. The section and other headings
--------------------------------
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(h) Delegation by the Board. All of the powers, duties and
-----------------------
responsibilities of the Board specified in this Agreement may, to the full
extent permitted by applicable law, be exercised and performed by any duly
constituted committee thereof to the extent authorized by the Board to exercise
and perform such powers, duties and responsibilities.
13
IN WITNESS WHEREOF, Holding and the Grantee have executed this Agreement as
of the date first above written.
RACI HOLDING, INC.
By: __________________________________
Name:
Title:
THE GRANTEE:
[Name]
By: ___________________________________
Name:
Title: Attorney-in-Fact
Address of the Grantee:
[Address]
Total Number of Shares
of Common Stock for
the Purchase of Which
Service Options Have
Been Granted: [Service Options]
14