Exhibit 10.54
AMENDED AND RESTATED CONSULTING AGREEMENT
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This AMENDED AND RESTATED CONSULTING AGREEMENT, dated as of January
1, 2001 (the "Agreement"), by and among RACI Holding, Inc., a Delaware
corporation ("Holding"), Remington Arms Company, Inc., a Delaware corporation
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and wholly owned subsidiary of Holding (the "Company") and Xxxxxxx, Dubilier
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& Rice, Inc., a Delaware corporation ("CD&R").
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W I T N E S S E T H:
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WHEREAS, the Company acquired its business in a transaction arranged
by CD&R, and in connection therewith CD&R provided consulting services to the
Company;
WHEREAS, after the acquisition Holding and the Company entered into a
Consulting Agreement, dated as of December 1, 1993 (the "Original Agreement"),
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pursuant to which Holdings and the Company receive financial and managerial
advisory services from CD&R; and
WHEREAS, in accordance with a resolution adopted by the Boards of
Directors of Holding and the Company on January 24, 2001, the parties to the
Original Agreement wish to amend certain provisions of the Original Agreement
relating to, among other things the services to be provided by CD&R to the
Company and Holding and the compensation to be paid by the Company to CD&R and,
in connection therewith, to amend and restate the Original Agreement in its
entirety;
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived
herefrom, the parties hereto hereby agree as follows:
1. Engagement. Holding and the Company hereby engage CD&R as a
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consultant, and CD&R hereby agrees to provide financial and managerial advisory
services to Holding and the Company, all on the terms and subject to the
conditions set forth below.
2. Services, etc. (a) CD&R hereby agrees during the term of this
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engagement to assist, advise and consult with the respective Boards of
Directors and management of Holding and the Company and their respective
subsidiaries in such manner and on such business, management and financial
matters, and provide such other financial and managerial advisory services, as
may be reasonably requested from time to time by the Boards of Directors of
Holding and the Company (the "Continuing Services"), including but not limited
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to assistance in:
(i) establishing and maintaining banking, legal and other
business relationships for the Company and its subsidiaries;
(ii) developing and implementing corporate and business strategy
and planning for the Company and its subsidiaries, including plans
and programs for improving operating, marketing and financial
performance and budgeting of future corporate investments;
(iii) arranging future debt and equity financings and refinancings;
and
(iv) providing professional employees to serve as directors of
Holding and the Company.
(b) CD&R hereby agrees during the term of this engagement to
provide the Company and Holding financial advisory, investment banking and
other similar services (the "Transaction Services") with respect to any
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proposal for an acquisition, merger, recapitalization or any other similar
transaction directly or indirectly involving Holding the Company and their
subsidiaries and any other person or entity (collectively,
"Add-on Transactions").
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(c) Holding and the Company will furnish CD&R with such
information as CD&R believes appropriate to its engagement hereunder (all such
information so furnished being referred to herein as the "Information").
Holding and the Company recognize and confirm that (i) CD&R will use and rely
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primarily on the Information and on information available from generally
recognized public sources in performing the services to be performed hereunder
and (ii) CD&R does not assume responsibility for the accuracy or completeness
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of the Information and such other information.
(d) As used in this Agreement, "affiliate" means, with respect to
any person or entity, any other person or entity directly or indirectly
controlling, controlled by or under common control with such first person or
entity and "control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management policies of a person or
entity by reason of ownership of voting securities, by contract or otherwise.
3. Compensation; Payment of Expenses. (a) The Company agrees to pay
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to CD&R, as compensation for services rendered and to be rendered by CD&R
hereunder, a fee of $500,000 per year (the "Continuing Services Fee"), one
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quarter of which shall be payable quarterly in advance on the first day of each
of January, April, July and October commencing on January 1, 2001. Any
Continuing Services Fees due for the quarterly period commencing January 1,
2001 that has not been paid shall be payable on the date hereof. Such
Continuing Services Fee may be increased with the approval of a majority of the
members of the Company's Board of Directors who are not employees of Holding,
the Company, CD&R of any affiliate of CD&R (the "Disinterested Directors") but
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may not be decreased without the prior written consent of CD&R. If any employee
of CD&R shall be elected to serve on the Board of Directors of Holding or the
Company or any of their affiliates (a "Designated Director"), in consideration
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of the Continuing Services Fee being paid to CD&R, CD&R shall cause such
Designated Director to waive any and all fees to which such director would
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otherwise be entitled as a director for any period for which the Continuing
Services Fee or any installment thereof is paid.
(b) If an employee of CD&R is appointed to an executive
management position (or a position of comparable responsibility), whether in
addition to or other than as a Designated Director, in the Company or Holding,
then for the period of such employee's service in such position the Continuing
Services Fee shall be increased by an amount to be determined by CD&R, such
amount not to exceed 100% of the Continuing Services Fee in effect at such
time.
(c) The Company agrees to pay to CD&R upon consummation of any
Add-on Transaction, as compensation for Transaction Services rendered by CD&R
hereunder with respect to such Add-on Transaction, a cash fee equal to 1.0% of
the Transaction Value of such Add-on Transaction (the "Add-on Fee"). Payment by
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the Company of an Add-on Fee in excess of 1.0% of the Transaction Value of the
Add-on Transaction shall require the approval of a majority of the
Disinterested Directors, provided that an Add-on Fee shall not be payable in
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connection with the sale by way of merger or otherwise of all or substantially
all of the outstanding shares of capital stock of Holding or the sale of all or
substantially all of the assets of Holding and its subsidiaries. As used
herein, the term "Transaction Value" means the total value of the Add-on
Transaction, including, without limitation, the aggregate amount of the cash
funds or other securities required to complete the Add-on Transaction
(excluding any fees payable pursuant to this Section 3(c)) including the amount
of any indebtedness, preferred stock or similar items assumed, refinanced or
left outstanding. For purposes of calculating the Add-on Fee, the value of any
securities included in the Transaction Value will be determined by the average
of the last sales prices for such securities on the five trading days ending
five days prior to the consummation of the Add-on Transaction, provided that if
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such securities do not have an existing public trading market, the value of the
securities shall be their fair market value as mutually agreed between the
Company and CD&R on the day prior to consummation of the Add-on Transaction.
(d) The Company shall reimburse CD&R for such reasonable travel
and other out-of-pocket expenses ("Expenses") as may be incurred by CD&R and
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its employees and agents in the course or on account of rendering any services
hereunder, including but not limited to any fees and expenses of any legal,
accounting or other professional advisors to CD&R engaged in connection with
the services being provided hereunder and any expenses incurred by any
Designated Director in connection with the performance of his or her duties.
CD&R may submit monthly expense statements, which shall be payable within
thirty days.
4. Term, etc. (a) This Agreement shall be in effect until,
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and shall terminate upon, the tenth anniversary of the date of the Original
Agreement, and may be earlier terminated by either party hereto upon 30 days'
prior written notice to the other party hereto. The provisions of this
Agreement shall survive any termination of this Agreement, except for the
provisions of Section 1, Section 2(b), Section 2(a), the first sentence of
Section 2(c) and (solely as to any portion of any Continuing Services Fee, any
Add-on Fee or any Expense not paid or reimbursed prior to such termination and
not
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required to be paid or reimbursed thereafter pursuant to Section 4(c) hereof)
Section 3 hereof.
(b) Upon any consolidation or merger, or any conveyance, transfer
or lease of all or substantially all of the assets of Holding or the Company as
an entirety, the successor corporation formed by such consolidation or into
which Holding or the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, Holding or the Company
under this Agreement with the same effect as if such successor corporation has
been a party thereto. No such consolidation, merger or conveyance, transfer or
lease of all or substantially all of the assets of Holding or the Company shall
have the effect of terminating this Agreement or of releasing Holding or the
Company or any such successor corporation from its obligations hereunder.
(c) Upon any termination of this Agreement, any accrued and
unpaid installment of the Continuing Services Fee or portion thereof (pro
rated, with respect to the month in which such termination occurs, for the
portion of such month that precedes such termination), any accrued and unpaid
Add-on Fee or portion thereof and any unpaid and unreimbursed Expenses that
shall have been incurred prior to such termination (whether or not such
Expenses shall then have become payable), shall be immediately paid or
reimbursed, as the case may be, by the Company. In the event of the liquidation
of the Company, all amounts due CD&R hereunder shall be paid to CD&R before
any liquidating distributions or similar payments are made to stockholders of
Holdings or the Company.
5. Indemnification. (a) Holding and the Company confirm and
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reaffirm their obligations pursuant to the Indemnification Agreement, dated
as of November 30, 1993, (the "Indemnification Agreement"), among Holding, the
Company, CD&R and The Xxxxxxx & Dubilier Private Equity Fund IV Limited
Partnership, as the same may be amended, waived, modified or supplemented from
time to time. Without limiting the generality of the foregoing, Holding and the
Company confirm and agree that (a) Holding and the Company shall indemnify,
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defend and hold harmless CD&R, the C&D Fund (as defined in the Indemnification
Agreement), C&D Associates (as defined in the Indemnification Agreement) and
each of the respective directors, officers, partners, employees, agents,
advisors, representatives and controlling persons (within the meaning of the
Securities Act of 1933, as amended) of CD&R, the C&D Fund and C&D Associates
(collectively, "Indemnitees") from and against any and all claims, obligations,
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liabilities, causes of action, actions, suits, proceedings, investigations,
judgments, decrees, losses, damages, fees, costs and expenses (including
without limitation interest, penalties and fees and disbursements of attorneys,
accountants, investment bankers and other professional advisors) (collectively,
"Obligations"), whether incurred with respect to third parties or otherwise, in
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any way resulting from, arising out of or in connection with, based upon or
relating to, the performance of the services contemplated hereby, except to the
extent that any such Obligation is found in a final judgment by a court having
jurisdiction to have resulted from the gross negligence or intentional
misconduct of CD&R, (b) no Indemnitee shall have any liability (whether direct
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or indirect, in contract or tort or otherwise) to Holding, the Company or their
respective security holders
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or creditors with respect to any Obligation in any way resulting from, arising
out of or in connection with, based upon or relating to, the performance of the
services contemplated hereby, except to the extent that any such Obligation is
found in a final judgment by a court having jurisdiction to have resulted from
the gross negligence or intentional misconduct of CD&R, and (c) the rights of
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each Indemnitee to be indemnified under any agreement, document, certificate
or instrument or applicable law are independent of and in addition to any
rights of such Indemnitee under any other agreement, document, certificate
or instrument or applicable law.
(b) The Company hereby agrees to advance costs and expenses,
including attorneys' fees, incurred by CD&R (acting on its own behalf or, if
requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or any Indemnitee in defending any claim relating to any Obligation
in advance of the final disposition of such claim within 30 days of receipt
from CD&R of (i) a notice setting forth the amount of such costs and expenses
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(a "Payment Notice") and (ii) an undertaking by or on behalf of CD&R or such
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Indemnitee to repay amounts so advanced if it shall ultimately be determined
that CD&R or such Indemnitee is not entitled to be indemnified by the Company
as authorized by this Agreement. CD&R may submit Payment Notices to the
Company monthly.
6. Independent Contractor Status. The parties agree that CD&R
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shall perform services hereunder as an independent contractor, retaining
control over and responsibility for its own operations and personnel. Neither
CD&R nor any of its employees or agents shall, solely by virtue of the
Agreement or the arrangements hereunder, be considered employees or agents of
Holding or the Company nor shall any of them have authority to contract in the
name of or bind the Company or Holding, except (a) to the extent that any
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professional employee of CD&R may be serving as an officer of the Company
pursuant to Section 3(b) hereof, (b) as expressly agreed to in writing by
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Holding or the Company and (c) the Company hereby acknowledges and agrees that
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any agreements, arrangements or understandings entered into by CD&R on behalf
of the Company prior to the date hereof in connection with the formation of the
Company and the acquisition by the Company of its business (including, but not
limited to, any confidentiality agreements, agreements with brokers or finders
and any arrangements relating to the financing of such acquisition) shall be
obligations of the Company binding on it to the same extent as such obligations
may be binding on CD&R and the Company shall fully perform, and shall indemnify
and hold harmless CD&R from and against, all such obligations. Any duties of
CD&R arising out of its engagement to perform services hereunder shall be owed
solely to Holding and the Company.
7. Notices. Any notice or other communication required or
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permitted to be given or made under this Agreement by one party to the other
parties shall be in writing and shall be deemed to have been duly given and
effective (i) on the date of delivery if delivered personally or (ii) when sent
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if sent by prepaid telegram, or mailed first-class, postage prepaid,
registered or certified mail, or facsimile transmission as follows (or to such
other address as shall be given in writing by one party to the other parties in
accordance herewith):
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If to the Company to:
Remington Arms Company, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
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Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Holding, to it care of
the Company at the address set
forth above.
If to CD&R to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, III
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Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: France X. Xxxxxxxxx.
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Telephone: (000) 000-0000
Telecopy: (000) 000-0000
8. Entire Agreement. This Agreement, together with the
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Indemnification Agreement and the Loanout Agreement, dated as of December 1,
1993 (the "Loanout Agreement"), among Holding, the Company and CD&R (a) contain
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the complete and entire understanding and agreement of CD&R, Holding and the
Company with respect to the subject matter hereof, and (b) supersede all prior
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and contemporaneous understandings, conditions and agreements, oral or written,
express or implied, in respect of the subject matter hereof, including but not
limited to in respect of the engagement of CD&R in connection with the subject
matter hereof. There are no representations or warranties of CD&R in connection
with this Agreement or the services to be provided hereunder, except as
expressly made and contained in this Agreement and the Loanout Agreement.
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9. Headings. The headings contained in this Agreement are for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
10. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
11. Binding Effect; Assignment. This Agreement shall be binding
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upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns and to each Indemnitee, provided that
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none of CD&R, Holding or the Company may assign any of its rights or
obligations under this Agreement without the express written consent of the
other party hereto. This Agreement is not intended to confer any right or
remedy hereunder upon any person other than the parties to this Agreement
and their respective successors and permitted assigns and each Indemnitee.
12. Governing Law. This Agreement shall be deemed to be a contract
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made under, and is to be governed and construed in accordance with, the laws of
the State of New York, without regard to the conflict of laws principles or
rules thereof. Holding, the Company and CD&R hereby irrevocably submit to the
jurisdiction of the courts of the State of New York and the Federal courts of
the United States of America located in the State, City and County of New York
solely in respect of the interpretation and enforcement of the provisions of
this Agreement, and hereby waive, and agree not to assert, as a defense in any
action, suit or proceeding for the interpretation or enforcement hereof, that
it is not subject thereto or that such action, suit or proceeding may not be
brought or is not maintainable in such courts or that the venue thereof may not
be appropriate or that this Agreement may not enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with respect to such
action or proceeding shall be heard and determined in such a New York State or
Federal court. Holding, the Company and CD&R hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of any such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
7, or in such other manner as may be permitted by law, shall be valid and
sufficient service thereof.
13. Waiver of Jury Trial. Each party hereto acknowledges and
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agrees that any controversy that may arise under this Agreement is likely to
involve complicated and difficult issues, and therefore it hereby irrevocably
and unconditionally waives any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (a) no representative, agent or attorney of any other party
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has represented, expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing waiver, (b) it
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understands and has considered the implications of this waiver, (c) it makes
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this waiver voluntarily, and (d) it has been induced to enter into this
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Agreement by, among other things, the mutual waivers and certifications
contained in this Section 13.
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14. Amendment; Waivers. No amendment, modification, supplement or
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discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party or Indemnitee
against whom enforcement of the amendment, modification, supplement, discharge
or waiver is sought (and in the case of Holding and the Company, approved by
resolution of the Boards of Directors of Holding and the Company). Any such
waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party or
Indemnitee granting such waiver in any other respect or at any other time.
Neither the waiver by any of the parties hereto or any Indemnitee of a breach
of or a default under any of the provisions of this Agreement, nor the failure
by any party hereto or any Indemnitee on one or more occasions, to enforce any
of the provisions of this Agreement or to exercise any right, powers or
privilege hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights,
power or privileges hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party or
Indemnitee may otherwise have at law or in equity or otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
XXXXXXX, DUBILIER & RICE, INC.
By:_______________________________
Name:
Title:
RACI HOLDING, INC.
By:_______________________________
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
REMINGTON ARMS COMPANY, INC.
By:_______________________________
Name: Xxxx Xxxxxx
Title: Executive Vice President
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