EXHIBIT 10.29
LOANOUT AGREEMENT
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This LOANOUT AGREEMENT, dated as of December 1, 1993 (the
"Agreement"), by and among RACI Holding, Inc., a Delaware corporation
("Holding"), Remington Arms Company, Inc., a Delaware corporation and wholly-
owned subsidiary of Holding (the "Company"), and Xxxxxxx, Dubilier & Rice, Inc.,
a Delaware corporation ("CD&R").
W I T N E S S E T H:
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WHEREAS, Holding, the Company and CD&R are parties to a Consulting
Agreement, dated as of the date hereof (the "Consulting Agreement"), among
Holding, the Company and CD&R, and an 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, a
Connecticut limited partnership (the "C&D Fund");
WHEREAS, the Company and Holding desire to use the services of Xx.
Xxxxxxx X. Xxxx ("Xxxx"), an employee of CD&R, to perform the functions of
Chairman and Chief Executive Officer of the Company and Holding and CD&R is
willing to make such services available to the Company and Holding upon and
subject to the terms and conditions hereof; and
WHEREAS, this Agreement has been approved by a majority of the
disinterested directors of each of the Company and Holding;
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, the parties hereto hereby agree as follows:
1. Services, etc.
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(a) CD&R shall furnish the services of Xxxx to the Company and
Holding, and the Company and Holding shall employ Xxxx to serve as Chairman and
Chief Executive Officer of each of the Company and Holding commencing and
effective as of December 1, 1993, until the expiration of the Term (as defined
in Section 2 hereof). Xxxx shall render such services, and on such part-time
or full-time basis, as shall be mutually agreeable to the Company, Holding, CD&R
and Xxxx.
Without limiting the foregoing, Xxxx may serve as an officer or director of CD&R
or other corporations.
(b) The services to be provided by Xxxx hereunder (the "Services")
shall be deemed part of the services provided by CD&R pursuant to the
Consulting Agreement. No separate or additional consideration shall be payable
hereunder for the Services, beyond that payable under the Consulting
Agreement.
2. Term.
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(a) This Agreement shall be effective as of December 1, 1993. The
term of this Agreement (the "Term") shall commence on December 1, 1993 and shall
terminate on the earliest to occur of (i) the termination of the Consulting
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Agreement in accordance with its terms, (ii) the date that is ten (10) business
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days following delivery of written notice of such termination by any party
hereto to the other parties hereto, and (iii) Xxxx'x death, permanent disability
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or resignation from his position with the Company and Holding.
(b) The expiration of the Term shall not affect the continuing
effectiveness of the Consulting Agreement (subject to Section 2(a)(i) hereof)
and the Indemnification Agreement, each of which shall continue to be in full
force and effect and enforceable in accordance with its terms. Without limiting
the foregoing, the Company shall continue to, and to be obligated to, pay and
reimburse all fees, expenses and other amounts when due under the Consulting
Agreement and the Indemnification Agreement and perform all its other
obligations thereunder.
3. Indemnification.
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All performance by, and all actions or omissions of, CD&R or Xxxx
under or in respect of this Agreement shall be deemed to be pursuant to the
Consulting Agreement, and shall be entitled to the benefits of the
indemnification and other provisions of the Consulting Agreement and the
Indemnification Agreement.
4. Independent Contractor Status.
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CD&R, the Company and Holding agree that the furnishing of Xxxx'x
services hereunder by CD&R is solely as an independent contractor, with CD&R
retaining control over
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and responsibility for its own operations and personnel. Neither CD&R nor any of
its employees or agents (including Xxxx) shall, solely by virtue of the
Agreement or the arrangements hereunder, be considered employees or agents of
the Company and Holding.
5. Notices.
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Any notice or other communication required or 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 to be effective (i) on the date
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of delivery if delivered personally or (ii) when sent if sent by prepaid
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telegram, or mailed first-class, postage prepaid, by 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):
If to the Company to:
Remington Arms Company, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
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
Attn: Xxxxxx X. Xxxx, III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6. General.
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(a) Entire Agreement. This Agreement together with the Consulting
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Agreement and the Indemnification Agreement (a) contain the complete and entire
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understanding and agreement of CD&R, Holding and the Company with respect to the
subject matter hereof, and (b) supersede all prior and contemporaneous
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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 Xxxx in connection with the subject matter hereof. There
are no representations or warranties of Xxxx or CD&R in connection with this
Agreement or the services to be provided hereunder, except as expressly made and
contained in this Agreement.
(b) 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.
(c) 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.
(d) Binding Effect; Assignment. This Agreement shall be binding upon
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and inure to the benefit of the parties to this Agreement and their respective
successors and assigns, provided that none of CD&R, the Company or Holding may
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assign any of its rights or obligations under this Agreement without the express
written consent of the other parties hereto.
(e) 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
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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 5, or in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
(f) Waiver of Jury Trial. Each party hereto acknowledges and agrees
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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 (i) 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, (ii) it
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understands and has considered the implications of this waiver, (iii) it makes
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this waiver voluntarily, and (iv) 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 6(f).
(g) 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 against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought (and in the case of Holding
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and the Company, approved by resolution of the Boards of Directors of each 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 granting such waiver in any other respect or at
any other time. Neither the waiver by any party hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any
party, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right 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 or privileges hereunder. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
RACI HOLDING, INC.
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: V.P. Controller & Treas.
REMINGTON ARMS COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: V.P. Controller & Treas.
XXXXXXX, DUBILIER & RICE, INC.
By /s/ Xxxxxx X. Xxxx, III
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Xxxxxx X. Xxxx, III
President
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