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Exhibit 10.2
RACI HOLDING, INC.
DIRECTOR MATCHING DEFERRED SHARE AWARD AGREEMENT
Deferred Share Award, dated as of June 25, 1999 (the "Award"), made
by RACI Holding, Inc., a Delaware corporation ("Holding"), to the Grantee whose
name appears on the signature page hereof (the "Grantee").
1. Grant of Deferred Shares. Effective as of the date hereof, Holding
hereby evidences and confirms its grant to the Grantee, on the terms and
conditions of this Award, of the number of shares of Deferred Shares set forth
on the signature page hereof, which represent Holding's contractual obligation
to deliver one share of the Class A Common Stock, par value $.01 per shares of
Holding ("Common Stock") to the Grantee for each Deferred Share Award granted
upon the terms and conditions set forth herein. The Deferred Shares granted
hereby shall be fully vested upon grant.
2. Nonassignability. The Deferred Shares granted hereby are not
assignable or transferable, in whole or in part, and 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.
3. No Rights as a Stockholder. Neither the Grantee nor any person or
persons to whom the Grantee's rights under this Award shall have passed by will
or by the laws of descent and distribution, as the case may be, shall have any
voting, dividend or other rights or privileges as a stockholder of Holding with
respect to any shares of Common Stock ("Shares") corresponding to the Deferred
Shares granted hereby unless and until a certificate for Shares is issued in
respect thereof.
4. Delivery Event. The Board of Holding (the "Board") may permit the
Grantee to further defer the distribution of Deferred Shares until such time or
times as the Grantee shall elect, in each case on such terms and conditions and
subject to such restrictions (including, without limitation, those deemed
necessary or appropriate to avoid the constructive receipt of such shares of
Common Stock by the Grantee) as the Board may impose from time to time. A
deferral opportunity does not have to made available to all grantees, and
different terms and conditions may apply with respect to the deferral
opportunities made available to different grantees. Unless the Grantee shall
electively defer such distribution by written notice to Holding at least 12
months prior to a Delivery Event in accordance with such conditions as the Board
of Directors of Holding (the "Board") shall impose, upon the occurrence of a
Delivery Event (as defined in Section 5),
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the Grantee shall receive, without payment, one share of Common Stock in
settlement of each Deferred Share that he or she then holds. As a condition to
the delivery of any Common Stock in respect of Deferred Shares, the holder of
such Deferred Shares (and anyone whose rights derive therefrom) shall execute a
subscription agreement (or such other agreement having comparable terms but
modified to reflect differences between such shares and shares purchased from
Holding as shall be required by Holding) (the "Subscription Agreement"). The
Grantee acknowledges and agrees that the Subscription Agreement will have
restrictions on transfer, take-along rights and other legal and contractual
restrictions similar to those contained in the Director Stock Subscription
Agreement described in the June 22 Supplement to the Confidential Offering
Memorandum dated May 14, 1999, a copy of which has been received by the Grantee,
or such other terms and provisions as Holding shall determine.
5. Distributions in Respect of Deferred Shares. The shares of Common
Stock related to any Deferred Shares granted hereunder shall be issued to the
Grantee upon the first to occur of (each such event, a "Delivery Event"):
(i) immediately prior to the first to occur of the following events
after the date hereof:
(a) the acquisition of 50% or more of the combined voting
power of Holding's then outstanding voting securities 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 of its direct or indirect subsidiaries,
any employee benefit plan of Holding or any of its direct
or indirect subsidiaries, or The Xxxxxxx & Dubilier
Private Equity Fund IV Limited Partnership, a Connecticut
limited partnership, or any successor investment vehicle
managed by Xxxxxxx, Dubilier & Rice, Inc. (the "C&D
Fund"),;
(b) the merger or consolidation of Holding, as a result of
which persons who were stockholders of Holding 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 Remington
Arms Company, Inc., a Delaware corporation (the
"Company"); 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
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that are not, immediately prior to such sale, transfer or
other disposition, affiliates of Holding or the Company.
(ii) the expiration of any lock-up period following the first day as
of which sales of Common Stock are made to the public in the United States
pursuant to an underwritten public offering of the Common Stock led by one or
more underwriters at least one of which is an underwriter of nationally
recognized standing (a "Public Offering") ;
(iii) immediately prior to the record date for a leveraged
recapitalization of Holding in which the C&D Fund has a realization event with
respect to a substantial portion of its investment unless (a) the holders of
Deferred Shares receive in such leveraged recapitalization the same per share
consideration as is paid or distributed in such recapitalization to the holders
of common stock and (b) the Grantee has not elected prior to such
recapitalization to receive the shares with respect to his Deferred Shares; and
(iv) the Grantee's termination of service as a director of Holding
(other than for Cause, as defined in Section 6), provided that no distribution
shall be made under this subclause (iv) unless Holding agrees to withhold enough
shares of Common Stock to satisfy the Grantee's applicable income and employment
tax withholding requirements with respect to such distribution.
6. Termination for Cause. In the event that the Grantee's service as
a director of Holding is terminated for Cause (as defined below), all Deferred
Shares credited to such Grantee shall terminate and be canceled immediately upon
such termination of service. "Cause" means (i) the willful failure by the
Grantee to perform substantially his duties as a director of Holding or the
Company (other than any such failure due to physical or mental illness) after a
demand for substantial performance is delivered to the Grantee by the Board,
which notice identifies the manner in which the Board believes that the Grantee
has not substantially performed his duties, (ii) the Grantee's engaging in
willful and serious misconduct that is injurious to Holding, the Company or any
subsidiary thereof, (iii) the Grantee's having been convicted of, or entered a
plea of guilty or nolo contendere to, a crime that constitutes a felony, (iv)
the willful and material breach by the Grantee of any written covenant or
agreement with Holding, the Company or any subsidiary thereof not to disclose
any information pertaining to Holding, the Company or any subsidiary thereof or
not to compete or interfere with Holding, the Company or any subsidiary thereof
or (v) the breach by the Grantee of his obligations pursuant to the "take-along"
provisions set forth in any Subscription Agreement to which he is a party.
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7. Capital Adjustments. If Holding is a party to any merger,
consolidation, divestiture (including a spin-off), reorganization,
reclassification, stock split-up, combination of shares, dividend on shares
payable in stock, liquidation or other transaction, such that an adjustment is
required to preserve, or to prevent enlargement of, the benefits or potential
benefits made available under an Award, then the Board shall, in such manner as
the Board shall deem equitable, adjust any or all of (i) the number and kind of
shares to which the Deferred Shares may relate and (ii) the number and kinds of
securities deliverable pursuant to Section 4 hereof. In any adjustment of shares
of Deferred Shares subject to this Award, fractional shares shall be omitted.
8. Tax Withholding. Whenever shares of Common Stock or other property
are to be distributed in respect to any Deferred Shares awarded hereunder,
Holding shall have the power to withhold, or require the Grantee to remit to
Holding, an amount sufficient to satisfy Federal, state, local and foreign
withholding tax requirements, including but not limited to income and employment
taxes, relating to such issuance, and Holding may defer issuance of such Shares
or other property until such requirements are satisfied. The Board may, in its
discretion, permit the Grantee to elect, subject to such conditions as the Board
shall impose, to satisfy his withholding obligation hereunder with Shares or any
other property issuable hereunder.
9. No Right to Continued Service. Nothing in this Award shall
interfere with or limit in any way the right of Holding or any of its
subsidiaries or their respective stockholders to terminate the Grantee's service
as a director of Holding or any of its subsidiaries at any time, or confer upon
the Grantee any right to continue in the service as a director of Holding or any
of its Subsidiaries.
10. Interpretation. The Board shall have full power and discretion to
construe and interpret this Award. Any determination or interpretation by the
Board under or pursuant to this Award shall be final and conclusive on all
persons affected hereby.
11. Binding Effect; Benefits. This Award shall be binding upon and
inure to the benefit of Holding and the Grantee and their respective successors
and assigns. Nothing in this Award, express or implied, is intended or shall be
construed to give any person other than Holding or the Grantee 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. This
grant is made in full and complete satisfaction of any claim the Grantee may
have regarding the promise by Holding to permit the Grantee to purchase its
Common Stock as of a date prior hereto.
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12. Waiver; Amendment.
(a) Waiver. Holding, the Grantee (each of Holding and the Grantee, a
"Party") or any beneficiary hereof may by written notice to the other Parties
(i) extend the time for the performance of any of the obligations or other
actions of the other Parties under this Award, (ii) waive compliance with any of
the conditions or covenants of the other Parties contained in this Award and
(iii) waive or modify performance of any of the obligations of the other Parties
under this Award. Except as provided in the preceding sentence, no action taken
pursuant to this Award, 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 Award 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.
(b) Amendment. This Award may not be altered, modified, or amended
except by a written instrument signed by Holding and the Grantee.
13. Severability. In the event that any one or more of the provisions
of this Award shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
14. 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 delivery, to Holding or the Grantee, as the
case may be, at the following addresses or to such other address as Holding or
the Grantee, as the case may be, shall specify by notice to the others:
if to Holding, to it at:
RACI Holding, Inc.
c/o Remington Arms Company, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Financial Officer
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if to the Grantee, to the Grantee 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 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:
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
with copies 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.
15. Sections and Other Headings. The section and other headings
contained in this Award are for reference purposes only and shall not affect the
meaning or interpretation of this Award.
16. Governing Law. This Award shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflict of laws.
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IN WITNESS WHEREOF, Holding has executed this Award as of the date
first above written.
RACI HOLDING, INC.
By
---------------------------------
Name:
Title:
Number of Deferred Shares: 1,250
ACCEPTED AND AGREED
AS OF THE DATE FIRST
ABOVE WRITTEN
THE GRANTEE:
Gen. H. Xxxxxx Xxxxxxxxxxx, Retired
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
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