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Exhibit 10.1
DIRECTOR STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of June 25, 1999 (the
"Agreement"), between RACI Holding, Inc., a Delaware corporation ("Holding"),
and the Purchaser whose name appears on the signature page hereof (the
"Purchaser").
W I T N E S S E T H :
WHEREAS, on December 1, 1993, Remington Arms Company, Inc., a
Delaware corporation formerly named RACI Acquisition Corporation, and a
wholly-owned subsidiary of Holding, acquired (the "Acquisition") substantially
all the assets and business of Sporting Goods Properties, Inc., formerly named
Remington Arms Company, Inc. ("Sporting Goods"), and certain related assets of
Sporting Goods' parent E. I. du Pont de Nemours and Company;
WHEREAS, the Board of Directors of Holding (the "Board") has
authorized Holding to offer the Purchaser the opportunity to purchase 1,250
shares of Class A Common Stock, par value $.01 per share ("Common Stock"), of
Holding (each a "Share" and, collectively, the "Shares"), at a price of $200.00
per share;
WHEREAS, the Purchaser desires to subscribe for and purchase
from Holding all of such Shares;
WHEREAS, the terms of the offering of the Shares of Common
Stock being made as of the date hereof are set forth in the RACI Holding, Inc.
June 22, 1999 Supplement to Confidential Offering Memorandum dated May 14, 1999
together with the Confidential Offering Memorandum dated May 14, 1999, as
supplemented by the supplement to offering memorandum dated June 8, 1999
(collectively, the "Offering Memorandum"), a copy which has been furnished to
the Purchaser by Holding; and
WHEREAS, Holding desires to sell to the Purchaser and the
Purchaser desires to purchase from Holding the Shares, on the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereto
hereby agree as follows:
1. Purchase and Sale of Common Stock.
(a) Purchase of Common Stock. Subject to all of the terms and
conditions of this Agreement, the Purchaser hereby subscribes for and shall
purchase and Holding shall sell to the Purchaser, the Shares, at a purchase
price of $200.00 per Share, at the Closing referred to in Section 2(a) hereof.
Notwithstanding anything in this Agreement to the contrary, Holding shall have
no obligation to sell any shares of Common Stock to any person who is a resident
of a jurisdiction in which the sale of Common Stock to such person would
constitute a violation of the securities, "blue sky" or other laws of such
jurisdiction.
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(b) Consideration. Subject to all of the terms and conditions
of this Agreement, the Purchaser shall deliver to Holding at the Closing
referred to in Section 2(a) hereof, immediately available funds in the amount of
$250,000.
2. Closing.
(a) Time and Place. Except as otherwise mutually agreed by
Holding and the Purchaser, the closing (the "Closing") of the transaction
contemplated by this Agreement shall be held at the offices of Debevoise &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on
June 25, 1999.
(b) Delivery by Holding. At the Closing, Holding shall deliver
to the Purchaser a stock certificate registered in such Purchaser's name and
representing the Shares, which certificate shall bear the legends set forth in
Section 3(b) hereof.
(c) Delivery by the Purchaser. At the Closing, the Purchaser
shall deliver to Holding the consideration referred to in Section 1(b) hereof.
3. Purchaser's Representations, Warranties and Covenants.
(a) Investment Intention. The Purchaser represents and
warrants that the Purchaser is acquiring the Shares solely for the Purchaser's
own account for investment and not with a view to or for sale in connection with
any distribution thereof. The Purchaser agrees that the Purchaser will not,
directly or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise
dispose of any of the Shares (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of any Shares), except in compliance with the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder, and in compliance with applicable state securities or "blue sky"
laws and foreign securities laws, if any. The Purchaser further understands,
acknowledges and agrees that none of the Shares may be transferred, sold,
pledged, hypothecated or otherwise disposed of (i) unless any transferee of the
Purchaser shall have agreed in writing, pursuant to an instrument of assumption
satisfactory in form and substance to Holding, to make the representations and
warranties set forth in Section 3 hereof, other than Section 3(f), and to be
bound by the provisions of Sections 3 through 5 hereof, inclusive, (ii) unless
(A) such disposition is pursuant to an effective registration statement under
the Securities Act, (B) the Purchaser shall have delivered to Holding an opinion
of counsel, which opinion and counsel shall be reasonably satisfactory to
Holding, to the effect that such disposition is exempt from the provisions of
Section 5 of the Securities Act or (C) a no-action letter from the Commission,
reasonably satisfactory to Holding, shall have been obtained with respect to
such disposition and (iii) unless such disposition is pursuant to registration
under any applicable state or foreign securities laws or an exemption therefrom.
(b) Legends. The Purchaser acknowledges that the certificate
or certificates representing the Shares shall bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A STOCK SUBSCRIPTION AGREEMENT, DATED AS OF JUNE
25, 1999, AND NEITHER THIS
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CERTIFICATE NOR THE SHARES REPRESENTED BY IT ARE ASSIGNABLE OR
OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH STOCK SUBSCRIPTION AGREEMENT, AS THE SAME
MAY BE AMENDED FROM TIME TO TIME, A COPY OF THE CURRENT FORM
OF WHICH IS ON FILE WITH THE SECRETARY OF HOLDING. THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE BENEFITS
OF AND ARE BOUND BY THE OBLIGATIONS SET FORTH IN A
REGISTRATION AND PARTICIPATION AGREEMENT, DATED AS OF NOVEMBER
30, 1993, AMONG HOLDING AND CERTAIN STOCKHOLDERS OF HOLDING,
AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF THE
CURRENT FORM OF WHICH IS ON FILE WITH THE SECRETARY OF
HOLDING."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF (i) UNLESS ANY TRANSFEREE OF THE HOLDER HEREOF SHALL HAVE
AGREED IN WRITING TO MAKE THE REPRESENTATIONS AND AGREEMENTS
SET FORTH IN SECTION 3 OF THE STOCK SUBSCRIPTION AGREEMENT AND
TO BE BOUND BY THE PROVISIONS OF SECTIONS 3 THROUGH 5,
INCLUSIVE, OF SUCH STOCK SUBSCRIPTION AGREEMENT, (ii) UNLESS
(A) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (B)
THE HOLDER HEREOF SHALL HAVE DELIVERED TO HOLDING AN OPINION
OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE REASONABLY
SATISFACTORY TO HOLDING, 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 AND EXCHANGE
COMMISSION, REASONABLY SATISFACTORY TO HOLDING, SHALL HAVE
BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (iii) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM. IF THE HOLDER
HEREOF IS A CITIZEN OR RESIDENT OF ANY JURISDICTION OTHER THAN
THE UNITED STATES, OR SUCH HOLDER DESIRES TO EFFECT ANY
TRANSFER IN ANY SUCH JURISDICTION, THEN, IN ADDITION TO THE
FOREGOING, COUNSEL FOR SUCH HOLDER (WHICH COUNSEL SHALL BE
REASONABLY SATISFACTORY TO HOLDING) SHALL HAVE FURNISHED
HOLDING WITH AN OPINION OR OTHER ADVICE REASONABLY
SATISFACTORY TO HOLDING TO THE EFFECT THAT SUCH TRANSFER WILL
COMPLY WITH THE SECURITIES LAWS OF SUCH JURISDICTION."
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(c) Securities Law Matters. The Purchaser acknowledges receipt
of advice from Holding that (i) the offer and sale of the Shares hereby have not
been registered under the Securities Act based on an exemption provided under
Rule 701 promulgated under the Securities Act or qualified under any state
securities or "blue sky" laws or foreign securities laws, (ii) it is not
anticipated that there will be any public market for the Shares, (iii) the
Shares must be held indefinitely and the Purchaser must continue to bear the
economic risk of the investment in the Shares unless the Shares are subsequently
registered under the Securities Act and such state and foreign laws or an
exemption from registration is available, (iv) Rule 144 promulgated under the
Securities Act ("Rule 144") is not presently available with respect to sales of
the Shares, and Holding has made no covenant to make Rule 144 available, (v)
when and if the 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 Rule 144, (vi) Holding does not plan to file reports with the
Commission or make public information concerning Holding available unless
required to do so by law or the terms of its financing agreements, (vii) if the
exemption afforded by Rule 144 is not available, sales of the Shares may be
difficult to effect because of the absence of public information concerning
Holding, (viii) a restrictive legend in the form heretofore set forth shall be
placed on the certificates representing the Shares and (ix) a notation shall be
made in the appropriate records of Holding indicating that the 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 Shares.
(d) Compliance with Rule 144. If any of the Shares are to be
disposed of in accordance with Rule 144, the Purchaser 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
other documentation as Holding may reasonably require to assure compliance with
Rule 144 in connection with such disposition.
(e) Ability to Bear Risk. The Purchaser represents and
warrants that (i) the financial situation of the Purchaser is such that the
Purchaser can afford to bear the economic risk of holding the Shares for an
indefinite period and (ii) the Purchaser can afford to suffer the complete loss
of the Purchaser's investment in the Shares.
(f) Access to Information. The Purchaser represents and
warrants that (i) the Purchaser has received the Offering Memorandum relating to
this offering of the Shares and the Purchaser has carefully reviewed such
Offering Memorandum and such other materials furnished to the Purchaser in
connection with the transaction contemplated hereby and (ii) the Purchaser has
been granted the opportunity to ask questions of, and receive answers from,
representatives of Holding concerning the terms and conditions of the purchase
of the Shares and to obtain any additional information that the Purchaser deems
necessary to verify the accuracy of the information contained in such materials.
(g) Restrictions on Sale upon Public Offering. The Purchaser
acknowledges and agrees that the Purchaser shall be entitled to the rights and
subject to the obligations created under the Registration and Participation
Agreement, dated as of November 30, 1993, among Holding and certain stockholders
of Holding, as the same may be amended from time to time (the "Registration and
Participation Agreement"), and
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the Shares shall be deemed to be "registrable securities," as defined in the
Registration and Participation Agreement, in each case, to the extent provided
therein.
(h) Registration. The Purchaser acknowledges and agrees that,
in the event that Holding files a registration statement under the Securities
Act with respect to an underwritten public offering of any shares of its capital
stock led by one or more underwriters at least one of which is an underwriter of
nationally recognized standing (a "Public Offering"), the Purchaser will not
effect any public sale or distribution of any shares of the Common Stock (other
than as part of such underwritten public offering), including but not limited
to, pursuant to Rule 144 or Rule 144A under the Securities Act, during the 20
days prior to and the 180 days after the effective date of such registration
statement. The Purchaser further understands and acknowledges that any sale,
transfer or other disposition of the Shares by him following a public offering
will be subject to compliance with, and may be limited under, the federal
securities laws and/or state "blue sky" securities laws.
4. Options of Holding and the C&D Fund Upon Proposed
Disposition.
(a) Rights of First Refusal. If the Purchaser desires to
accept an offer (which must be in writing and for cash, be irrevocable by its
terms for at least 60 days and be a bona fide offer as determined in good faith
by the Board) from any prospective purchaser to purchase all or any part of the
Shares at any time owned by the Purchaser, the Purchaser shall give notice in
writing to Holding and The Xxxxxxx & Dubilier Private Equity Fund IV Limited
Partnership, a Connecticut limited partnership (together with any successor
investment vehicle managed by Xxxxxxx, Dubilier & Rice, Inc., the "C&D Fund")
(i) designating the number of Shares proposed to be sold, (ii) naming the
prospective purchaser of such Shares and (iii) specifying the price (the "Offer
Price") at and terms (the "Offer Terms") upon which the Purchaser desires to
sell the same. During the 30-day period following receipt of such notice by
Holding and the C&D Fund (the "First Refusal Period"), Holding shall have the
right to purchase from the Purchaser the Shares specified in such notice, at the
Offer Price and on the Offer Terms. Holding hereby undertakes to use reasonable
efforts to act as promptly as practicable following such notice to determine
whether it shall elect to exercise such right. If Holding fails to exercise such
rights within the First Refusal Period, the C&D Fund shall have the right to
purchase the Shares specified in such notice, at the Offer Price and on the
Offer Terms, at any time during the period beginning at the earlier of (x) the
end of the First Refusal Period and (y) the date of receipt by the C&D Fund of
written notice that Holding has elected not to exercise its rights and ending 30
days thereafter (the "Second Refusal Period"). The rights provided hereunder
shall be exercised by written notice to the Purchaser given at any time during
the applicable period. If such right is exercised, Holding or the C&D Fund, as
the case may be, shall deliver to the Purchaser, within the applicable Refusal
Period, a check for the Offer Price, payable to the order of the Purchaser,
against delivery of certificates or other instruments representing the Shares so
purchased, appropriately endorsed by the Purchaser. If such right shall not have
been exercised, including the delivery to the Purchaser of a check for the Offer
Price, prior to the expiration of the Second Refusal Period, then at any time
during the 30 days following the expiration of the Second Refusal Period, the
Purchaser may sell such Shares to (but only to) the intended purchaser named in
the Purchaser's notice to Holding and the C&D
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Fund at the Offer Price and on the Offer Terms specified in such notice, free of
all restrictions or obligations imposed by, and free of any rights or benefits
set forth in, Section 4 of this Agreement, provided that such intended purchaser
shall have agreed in writing, pursuant to an instrument of assumption
satisfactory in substance and form to Holding, to make and be bound by the
representations, warranties and covenants set forth in Section 3 hereof, other
than those set forth in Sections 3(f), this Section 4 (as to any subsequent sale
of the Shares) and Section 5 hereof.
(b) Public Offering. In the event that a Public Offering has
been consummated, neither Holding nor the C&D Fund shall have any rights to
purchase the Shares from the Purchaser pursuant to this Section 4 and this
Section 4 shall not apply to a sale to the underwriters as part of a Public
Offering.
5. Take-Along Rights.
(a) Take-Along Notice. So long as the C&D Fund holds a number
of shares of Common Stock equal to at least one-third of the Common Stock
originally purchased by the C&D Fund at the closing of the Acquisition, if the
C&D Fund intends to effect a sale of all of its shares of Common Stock to a
third party (a "100% Buyer") and elects to exercise its rights under this
Section 5, the C&D Fund shall deliver written notice (a "Take-Along Notice") to
the Purchaser, which notice shall (a) state (i) that the C&D Fund wishes to
exercise its rights under this Section 5 with respect to such transfer, (ii) the
name and address of the 100% Buyer, (iii) the per share amount and form of
consideration the C&D Fund proposes to receive for its shares of Common Stock
and (iv) the terms and conditions of payment of such consideration and all other
material terms and conditions of such transfer, (b) contain an offer (the
"Take-Along Offer") by the 100% Buyer to purchase from the Purchaser all of his
Shares on and subject to the same terms and conditions offered to the C&D Fund
and (c) state the anticipated time and place of the closing of the purchase and
sale of the shares (a "Section 5 Closing"), which (subject to such terms and
conditions) shall occur not fewer than five (5) days nor more than ninety (90)
days after the date such Take-Along Notice is delivered, provided that if such
Section 5 Closing shall not occur prior to the expiration of such 90-day period,
the C&D Fund shall be entitled to deliver additional Take-Along Notices with
respect to such Take-Along Offer.
(b) Conditions to Take-Along. Upon delivery of a Take-Along
Notice, the Purchaser shall have the obligation to transfer all of his Shares
pursuant to the Take-Along Offer, as the same may be modified from time to time,
provided that the C&D Fund transfers all of its Shares to the 100% Buyer at the
Section 5 Closing. Within 10 days of receipt of the Take-Along Notice, the
Purchaser shall (i) execute and deliver to the C&D Fund a power of attorney and
a letter of transmittal and custody agreement in favor of, and in form and
substance satisfactory to, the C&D Fund, constituting the C&D Fund, Xxxxxxx,
Dubilier & Rice, Inc. ("CD&R") or one or more of their respective affiliates
designated by the C&D Fund (the "Custodian"), the true and lawful
attorney-in-fact and custodian for the Purchaser, with full power of
substitution, and authorizing the Custodian to take such actions as the
Custodian may deem necessary or appropriate to effect the sale and transfer of
the Shares to the 100% Buyer, upon receipt of the purchase price therefor at the
Section 5 Closing, free and clear of all security interests, liens, claims,
encumbrances, charges, options, restrictions on transfer, proxies and voting and
other
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agreements of whatever nature, and to take such other action as may be necessary
or appropriate in connection with such sale, including consenting to any
amendments, waivers, modifications or supplements to the terms of the sale
(provided that the C&D Fund also so consents, and sells and transfers its shares
of Common Stock on the same terms as so amended, waived, modified or
supplemented) and (ii) deliver to the C&D Fund certificates representing the
Shares, together with all necessary duly executed stock powers.
(c) Remedies. The Purchaser acknowledges that the C&D Fund
would be irreparably damaged in the event of a breach or a threatened breach by
the Purchaser of any of its obligations under this Section 5 and the Purchaser
agrees that, in the event of a breach or a threatened breach by the Purchaser of
any such obligation, the C&D Fund shall, in addition to any other rights and
remedies available to it in respect of such breach, be entitled to an injunction
from a court of competent jurisdiction granting it specific performance by the
Purchaser of its obligations under this Section 5. In the event that the C&D
Fund shall file suit to enforce the covenants contained in this Section 5 (or
obtain any other remedy in respect of any breach thereof), the prevailing party
in the suit shall be entitled to recover, in addition to all other damages to
which it may be entitled, the costs incurred by such party in conducting the
suit, including reasonable attorney's fees and expenses. In the event that,
following a breach or a threatened breach by the Purchaser of the provisions of
this Section 5, the C&D Fund does not obtain an injunction granting it specific
performance of the Purchaser's obligations under this Section 5 in connection
with such proposed sale prior to the time the C&D Fund completes the sale of its
shares or, in its sole discretion, abandons such sale, then Holding shall have
the option to purchase the Shares from the Purchaser at a purchase price per
Share equal to the lesser of (i) the fair market value of such Shares as of the
date of the breach or threatened breach that gives rise to the right to
repurchase and (ii) the price at which the Purchaser purchased such Shares from
Holding.
(d) Public Offering. In the event that a Public Offering has
been consummated, the provisions of this Section 5 shall terminate and cease to
have further effect.
6. Representations and Warranties of Holding. Holding
represents and warrants to the Purchaser that (a) Holding has been duly
incorporated and is an 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 and constitutes a valid and legally binding obligation of
Holding enforceable against Holding in accordance with its terms, (c) the
Shares, when issued, delivered and paid for in accordance with the terms hereof,
will be duly and validly issued, fully paid and nonassessable, and free and
clear of any liens or encumbrances other than those created pursuant to this
Agreement, or otherwise in connection with the transactions contemplated hereby,
and (d) the Shares, when issued and held by the Purchaser, by the Purchaser's
estate upon transfer by operation of law on the Purchaser's death or by the C&D
Fund, shall be "Registrable Securities" as provided in the Registration and
Participation Agreement.
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7. Covenants of Holding.
(a) Rule 144. Holding agrees that at all times after it has
filed a registration statement after the date hereof pursuant to the
requirements of the Securities Act or Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), relating to any class of equity
securities of Holding (other than (i) the registration of equity securities of
Holding and/or options or interests in respect thereof to be offered primarily
to directors and/or members of management or employees, sales agents or similar
representatives of Holding, or any subsidiary of Holding, directors or senior
executives of corporations in which entities managed or sponsored by CD&R have
made equity investments and/or other persons with whom CD&R has consulting or
other advisory relationships, or (ii) the registration of equity securities
and/or options or other interests in respect thereof solely on Form S-4 or S-8
or any successor form), it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder (or, if Holding is not required to file
such reports, it will, upon the request of the Purchaser, make publicly
available such information as necessary to permit sales pursuant to Rule 144
under the Securities Act), to the extent required from time to time to enable
the Purchaser to sell the Shares without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144, as such Rule
may be amended from time to time, or (ii) any successor rule or regulation
hereafter adopted by the Commission.
(b) State Securities Laws. Holding agrees to use its best
efforts to comply with all state securities or "blue sky" laws applicable to the
sale of the Shares to the Purchaser, provided that Holding shall not be
obligated to qualify or register the Shares under any such law or to qualify as
a foreign corporation or file any consent to service of process under the laws
of any jurisdiction or subject itself to taxation as doing business in any such
jurisdiction.
8. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to 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 mail delivery, to Holding or the Purchaser, as
the case may be, at the following addresses or to such other address as Holding
or the Purchaser, 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.
000 Xxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chairman
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(ii) if to the Purchaser, to the Purchaser at the address set forth
on the signature page hereof.
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally 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:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, III
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
The C&D Fund shall also be given a copy of any notice or other communication
between the Purchaser and Holding under this Agreement at its address as set
forth below:
The Xxxxxxx & Dubilier Private Equity
Fund IV Limited Partnership
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx & Dubilier Associates
IV Limited Partnership,
Xxxxxx X. Xxxx, III
(b) Binding Effect; Benefits. This Agreement shall be binding
upon the parties to this Agreement and their respective successors and assigns
and shall inure to the benefit of the parties to the Agreement, the C&D Fund and
their respective successors and assigns. Except as provided in Sections 4 and 5,
nothing in this Agreement, express or implied, is intended or shall be construed
to give any person other than the parties to this Agreement, the C&D Fund 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 provisions of Sections 4 and 5 must be consented to in writing by
the C&D Fund.
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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 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 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 Purchaser and Holding, and (in the case of
any amendment, modification or supplement to or affecting Section 4 or
5 hereof, or 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 Holding's
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 Purchaser 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 Sections 4 and 5 hereof 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 NEW YORK, EXCEPT TO THE
EXTENT THAT THE CORPORATE LAW OF THE STATE OF DELAWARE SPECIFICALLY AND
MANDATORILY APPLIES.
(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.
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IN WITNESS WHEREOF, Holding and the Purchaser have executed
this Agreement as of the date first above written.
RACI HOLDING, INC.
By:
------------------------------------
Name:
Title:
THE PURCHASER:
By:
------------------------------------
H. Xxxxxx Xxxxxxxxxxx as Trustee for
the H. Xxxxxx Xxxxxxxxxxx Revocable
Trust of 1992
Address of the Purchaser:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Total Number of Shares
of Common Stock to be
Purchased: 1,250
Cash Purchase
Price: $250,000
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