Execution Form
| Exhibit 99.1 |
| Execution Form |
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among AMERICAN HERITAGE ARMS, LLC, as Buyer, RACI HOLDING, INC., THE STOCKHOLDERS OF and THE OPTION HOLDERS OF Dated as of April 4, 2007 |
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TABLE OF CONTENTS |
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| EXHIBITS AND SCHEDULES | |
| Exhibit A | Form of Escrow Agreement |
| Exhibit B | Investment Commitment Letter |
| Schedule 1.1 | List of Sellers and Shares |
| Schedule 1.2(a) | List of Option Holders and Option Shares |
| Schedule 1.2(b) | List of Deferred Share Holders |
| Schedule 3.2(a) | Conflicts |
| Schedule 3.2(b) | Consents |
| Schedule 4.1 | List of Subsidiaries |
| Schedule 4.2(d) | Authorized Capital Stock of the Company’s Subsidiaries |
| Schedule 4.2(e) | Agreements with Respect to Common Stock |
| Schedule 4.2(f) | Equity Interests |
| Schedule 4.3(a) | Conflicts |
| Schedule 4.3(b) | Consents |
| Schedule 4.4(c) | Reports and Financial Statements |
| Schedule 4.5 | Liabilities |
| Schedule 4.6(a) | Events Subsequent to Latest Financial Statements |
| Schedule 4.6(b) | Certain Events Subsequent to Latest Financial Statements |
| Schedule 4.6(c) | Certain Events since Latest Audited Financial Statements |
| Schedule 4.7(a) | Tax Returns |
| Schedule 4.7(b) | Extensions |
| Schedule 4.7(c) | Copies of Tax Returns; Audits, etc. |
| Schedule 4.7(d) | Tax Sharing Agreements |
| Schedule 4.7(e) | Other Tax Jurisdictions |
| Schedule 4.8 | Litigation |
| Schedule 4.9 | Compliance with Laws |
| Schedule 4.10(a) | Employee Benefits Plans |
| Schedule 4.10(b) | Pending or Threatened Legal Actions, etc. |
| Schedule 4.10(d) | Required Contributions |
| Schedule 4.10(f) | Post-Employment Benefits |
| Schedule 4.10(g) | Parachute Payments |
| Schedule 4.10(j) | Grantor Trust; Funding Arrangement |
| Schedule 4.10(l) | Representation |
| Schedule 4.10(m) | Management Bonuses, etc. |
| Schedule 4.11 | Permits |
| Schedule 4.12(a) | Owned Real Property |
| Schedule 4.12(b) | Liens |
| Schedule 4.12(c) | Outstanding Options or Rights of First Refusal |
| Schedule 4.12(d) | Real Property Exceptions |
| Schedule 4.13(a) | Leases |
| Schedule 4.14 | Personal Property |
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| Schedule 4.15(a) | Owned Intellectual Property |
| Schedule 4.15(b) | Licenses |
| Schedule 4.16 | Contracts |
| Schedule 4.17 | Insurance |
| Schedule 4.18 | Environmental Matters |
| Schedule 4.19(a) | Employee Matters |
| Schedule 4.19(b) | Labor Matters |
| Schedule 4.20 | Affiliate Transactions |
| Schedule 4.21 | Product Warranties |
| Schedule 4.22(a)(i) | Government Contracts |
| Schedule 4.22(a)(ii) | Government Bids |
| Schedule 4.22(b) | Government Contract Compliance |
| Schedule 4.22(c) | Investigations and Audits |
| Schedule 4.22(d) | Claims |
| Schedule 4.23(e) | Government Compliance |
| Schedule 4.24 | Accounts Receivable |
| Schedule 4.27(a) | Largest Customers |
| Schedule 4.27(b) | Largest Suppliers |
| Schedule 4.27(c) | Reductions in Customers and Suppliers |
| Schedule 4.27(d) | Bankrupt Customers and Suppliers |
| Schedule 6.1(a) | Conduct of the Company and its Subsidiaries |
| Schedule 6.1(b)(i) | Certain Contracts |
| Schedule 6.1(b)(ii) | Certain Contracts |
| Schedule 6.1(c) | Management Amount |
| Schedule 7.1(d) | Terminated Agreements with Affiliates |
| Schedule 7.3(c) | Necessary Consents |
| Schedule 11.10 | Knowledge; Interpretation |
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STOCK PURCHASE AGREEMENT, dated as of April 4, 2007, among American Heritage Arms, LLC, a Delaware limited liability company (the “Buyer”), The Xxxxxxx & Dubilier Private Equity Fund IV Limited Partnership, a Connecticut limited partnership (“CD Fund IV”), Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P., a Delaware limited partnership (“BRS Fund II”), RACI Holding, Inc., a Delaware corporation (the “Company”), the parties listed in Schedule 1.1 hereto (each, a “Seller” and collectively, the “Sellers”) and the Option Holders (as defined below). W I T N E S S E T H : WHEREAS, the Sellers own all of the capital stock of the Company consisting of 211,059 shares (the “Shares”), 205,208 of which are issued and outstanding and 5,851 of which are Deferred Shares, of Class A Common Stock, par value $.01 per share (“Class A Common Stock”), and the Company owns all of the issued and outstanding shares of common stock, par value $.01 per share, of Remington Arms Company, Inc., a Delaware corporation (“Remington”) (capitalized terms used herein without definition shall have the meaning specified in Section 2.1 hereof); WHEREAS, the Sellers wish to sell the Shares to the Buyer, and the Buyer wishes to purchase the Shares from the Sellers, on the terms and conditions and for the consideration set forth in this Agreement; and NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties made herein and of the mutual benefits to be derived therefrom, the parties hereto agree as follows: ARTICLE I 1.1 Sale and Purchase of Shares. Subject to the terms and conditions hereof, at the Closing, each Seller will sell to the Buyer, and the Buyer will purchase from each Seller, the number of Shares set forth opposite such Seller’s name in the column entitled “Number of Shares” in Schedule 1.1 (for each Seller, the “Share Number”) for a purchase price equal to the product of (a) $330.47 (the “Per Share Purchase Price”) and (b) the number of such Shares. The aggregate purchase price to be paid by the Buyer for all Shares is $69,748,667.73 (the “Shares Purchase Price”). 1.2 Cancellation of Options and Distribution in Respect of Deferred Shares. (a) Options. Subject to the terms and conditions hereof, effective as of the Closing and in accordance with the Stock Option Agreements evidencing all then outstanding options to purchase shares of Class A Common Stock granted under the Stock Incentive Plans (each, an “Option”) to any current or former employee or director |
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of or consultant to the Company or any Subsidiary thereof as set forth on Schedule 1.2(a) (each, an “Option Holder”), each such Option shall be canceled and, in exchange therefor, each Option Holder shall be entitled to a cash payment (the “Option Cancellation Payments”) in respect of each such canceled Option equal to the product of (i) the number of shares of Class A Common Stock covered by such Option immediately prior to the Closing as set forth on Schedule 1.2(a) (the “Option Shares”) multiplied by (ii) the excess of (x) the Per Share Purchase Price over (y) the per share exercise price under such Option for each such Option Share. As of the date hereof, the aggregate amount of the Option Cancellation Payments (prior to any deductions or payments made pursuant to Sections 1.3(e) and (g)) would be $1,171,551.60. (b) Deferred Shares. Subject to the terms and conditions hereof, immediately prior to the Closing and in accordance with the terms of the Amended and Restated RACI Holding, Inc. Stock Incentive Plan, shares of the Company’s Class A Common Stock relating to then-outstanding deferred shares granted pursuant to such plan (each, a “Deferred Share”) to any current or former employee or director of or consultant to the Company or any Subsidiary thereof as set forth on Schedule 1.2(b) (each, a “Deferred Share Holder”) shall be distributed to the Deferred Share Holders. The distribution of the shares of the Company’s Class A Common Stock relating to the Deferred Shares shall be subject to all applicable Employment and Withholding Taxes. Deferred Shares shall be treated as Shares and Deferred Share Holders shall be treated as Sellers for all purposes of this Agreement. (a) The closing of the sale and purchase of the Shares (the “Closing”) will take place at the offices of Debevoise & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. on June 4, 2007 (or such earlier date to the extent that the Buyer has secured the Acquisition Financing so that the financing closing can occur simultaneously with the Closing), or such other time as the parties hereto may agree in writing (the “Closing Date”); provided that the Buyer may extend such date from time to time, but no later than the date set forth in Section 10.1(b), in order to complete the Acquisition Financing. (b) At the Closing, each Seller will deliver to the Buyer, free and clear of all Liens, certificates representing all of the Shares set forth opposite such Seller’s name in Schedule 1.1, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, and bearing or accompanied by all requisite stock transfer stamps. (c) At the Closing, the Buyer will deliver the Escrow Amount by wire transfer of immediately available funds to the Escrow Agent under the Escrow Agreement. |
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(d) At the Closing, the Buyer will pay to the Sellers by wire transfer of immediately available funds, to such account as shall be designated in writing by each Seller to the Buyer at least two business days prior to the Closing Date, the amount opposite such Seller’s name in the column entitled “Seller Purchase Price” in Schedule 1.1 less each Seller’s share of the Escrow Amount, the Insurance Amount, the Expense Amount and the Management Amount determined in accordance with the following formulas: |
| (i) For each Seller (other than CD Fund IV) an amount equal to the product of (x) each such Seller’s Equity Percentage multiplied by (y) the sum of (A) the Escrow Amount, (B) the Insurance Amount, (C) the Expense Amount and (D) the Management Amount; and | |
| (ii) For CD Fund IV, an amount equal to the product of (x) the CD Fund IV Percentage multiplied by (y) the sum of the (A) Escrow Amount, (B) the Insurance Amount, (C) the Expense Amount and (D) the Management Amount. |
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(e) At the Closing, the Company will pay to each Option Holder by wire transfer of immediately available funds, to such account as shall be designated in writing by each Option Holder to the Buyer at least two business days prior to the Closing Date, such Option Holder’s Option Cancellation Payment less such Option Holder’s share of the Escrow Amount, the Insurance Amount, the Expense Amount and the Management Amount, determined by multiplying (i) each Option Holder’s Option Percentage by (ii) the sum of (w) the Escrow Amount, (x) the Insurance Amount, (y) the Expense Amount and (z) the Management Amount. The Option Cancellation Payments shall be subject to all applicable Employment and Withholding Taxes. (f) The chief financial officer of the Company shall deliver to the Sellers, the Option Holders and the Buyer on the date that is three business days prior to the Closing Date a certificate setting forth the Insurance Amount and the calculation of each Seller’s Equity Percentage (other than CD Fund IV), the CD Fund IV Percentage and each Option Holder’s Option Percentage. The sum of the foregoing percentages shall equal 100%. (g) At the Closing, the Buyer shall pay by wire transfer of immediately available funds to the accounts specified in the Expense Statement the Expense Amount. Each of CD Fund IV and BRS Fund II shall deliver to each other, the Sellers’ Representative and the Buyer on the date that is three business days prior to the Closing Date a statement signed by an officer of such party (all such statements, the “Expense Statement”) setting forth the reasonable out-of-pocket costs, fees and expenses of such party incurred in connection with the transactions contemplated hereby (including a reasonable estimate of such out-of-pocket costs, fees and expenses through the Closing |
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| Acquisition Financing: the meaning set forth in Section 6.7. | |
| Acquisition Proposal: the meaning set forth in Section 6.4(a). | |
| Affiliate: with respect to any Person, a Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. “Control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise. “Affiliate,” when used in reference to the Company prior to Closing, or the Sellers, includes (a) Xxxxxxx, Dubilier & Rice, Inc. and BRS & Co., Inc. and (b) the officers and directors of Xxxxxxx, Dubilier & Rice, Inc. and BRS & Co., Inc. | |
| Agreement: this Stock Purchase Agreement, including the Exhibits and Schedules hereto. | |
| Antitrust Division: the meaning set forth in Section 7.3(a). | |
| Audited Financial Statements: the meaning set forth in Section 4.4(b). | |
| BIS: the meaning set forth in Section 4.23(d). | |
| Breaching Seller Indemnifying Party: the meaning set forth in Section 9.1(c). | |
| BRS Fund II: the meaning set forth in the preamble. | |
| Buyer: the meaning set forth in the preamble. | |
| Buyer Indemnified Parties: the Buyer and its officers, directors, employees, agents and Affiliates (including, after the Closing, the Company and its Subsidiaries). |
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| Cap: the meaning set forth in Section 9.1(d). | |
| CBA Negotiations: the meaning set forth in Section 4.19(c). | |
| CD Fund IV: the meaning set forth in the preamble. | |
| CD Fund IV Percentage: the quotient of (x) the sum of (i) the Notes Payoff Amount, (ii) the Interest Amount, and (iii) the product of the CD Fund IV’s Share Number multiplied by the Per Share Purchase Price, divided by (y) the Total Proceeds. | |
| Claim Notice: written notification pursuant to Section 9.2(a) of a Third Party Claim as to which indemnity under Section 9.1 is sought by an Indemnified Party, enclosing a copy of all papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim against the Indemnifying Party under Section 9.1. | |
| Class A Common Stock: the meaning set forth in the recitals. | |
| Closing: the meaning set forth in Section 1.3(a). | |
| Closing Date: the meaning set forth in Section 1.3(a). | |
| Code: the Internal Revenue Code of 1986, as amended. | |
| Company: the meaning set forth in the preamble. | |
| Company Audited Financial Statements: the meaning set forth in Section 4.4(b). | |
| Company Intellectual Property: the Owned Intellectual Property and the Licenses. | |
| Company Interim Financial Statements: the meaning set forth in Section 4.4(b). | |
| Company SEC Reports: the meaning set forth in Section 4.4(a). | |
| Company Taxes: the meaning set forth in Section 4.7(a). | |
| Confidentiality Agreement: the meaning set forth in Section 6.3(a). | |
| Consent: any consent, approval, authorization, order, filing, registration or qualification of or with any Person. |
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| Contracts: the meaning set forth in Section 4.16. | |
| Credit Agreement: the meaning set forth in Section 6.5(b). | |
| DDTC: the meaning set forth in Section 4.23(b). | |
| Debt Commitment Letter: the meaning set forth in Section 5.6. | |
| Debt Tender Offer: the meaning set forth in Section 6.17(a). | |
| Debt Tender Offer Documents: the meaning set forth in Section 6.17(d). | |
| Deferred Share: the meaning set forth in Section 1.2(b). | |
| Deferred Share Holder: the meaning set forth in Section 1.2(b). | |
| Director and Officer Indemnified Parties: the meaning set forth in Section 6.15(a). | |
| Dispute Period: the period ending thirty (30) days following receipt by an Indemnifying Party of either a Claim Notice or an Indemnity Notice. | |
| EAR: the meaning set forth in Section 4.23(a). | |
| Employment and Withholding Taxes: any federal, state, provincial, local, foreign or other employment, unemployment insurance, social security, disability, workers’ compensation, payroll, health care or other similar tax, duty or other governmental charge or assessment or deficiencies thereof and all Taxes required to be withheld by or on behalf of each of the Company and each of its Subsidiaries in connection with amounts paid or owing to any employee, independent contractor, creditor or other party, in each case, on or in respect of the business or assets thereof. Any Employment and Withholding Tax is also included in the definition of Tax wherever the term Tax is used. | |
| Environmental Law: any federal, state, or local law, statute, rule, regulation or order, including all common law, relating to (a) the presence, manufacture, transport, use, treatment, storage, disposal, arrangement for or permitting the disposal of, transport, handling, release or threatened release of or exposure to Hazardous Substances or (b) the protection of human health or the environment (including, without limitation, natural resources, air, and surface or subsurface land or waters). | |
| ERISA: the Employee Retirement Income Security Act of 1974, as amended. |
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| Equity Percentage: for any Seller (other than CD Fund IV), the quotient of (a) the product of (i) the Share Number of such Seller multiplied by (ii) the Per Share Purchase Price, divided by (b) the Total Proceeds. | |
| Escrow Agent: Citibank, N.A. or such other escrow agent as the parties hereto may agree. | |
| Escrow Agreement: escrow agreement to be entered into on the Closing Date by the Buyer, the Sellers, the Option Holders and the Escrow Agent substantially in the form of Exhibit A hereto. | |
| Escrow Amount: $5,000,000. | |
| Escrow Funds: all amounts delivered to the Escrow Agent in accordance with Section 1.3(c). | |
| Exchange Act: the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. | |
| Expense Amount: the meaning set forth in Section 1.3(g). | |
| Expense Statement: the meaning set forth in Section 1.3(g). | |
| Financial Statements: the meaning set forth in Section 4.4(b). | |
| Financing: the meaning set forth in Section 5.6. | |
| Financing Commitments: the meaning set forth in Section 5.6. | |
| FTC: the meaning set forth in Section 7.3(a). | |
| GAAP: the meaning set forth in Section 4.4(b). | |
| Government Bid: the meaning set forth in Section 4.22(a). | |
| Government Contract: the meaning set forth in Section 4.22(a). | |
| Governmental Entity: any governmental or regulatory authority, agency, court, commission or other entity, domestic or foreign. | |
| Hazardous Substance: any material, substance or waste that is: (a) listed, classified or regulated as “hazardous” or “toxic” or with respect to which liability or standards of conduct are imposed pursuant to any applicable Environmental Law, or (b) any petroleum product or by-product, asbestos or polychlorinated biphenyls. |
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| HSR Act: the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder. | |
| Income Tax Return: a Tax Return with respect to a Tax imposed on or measured by net income or a state franchise Tax Return. | |
| Indemnified Party: any Person claiming indemnification under any provision of Article IX. | |
| Indemnifying Party: any Person against whom a claim for indemnification is being asserted under any provision of Article IX. | |
| Indemnity Notice: written notification pursuant to Section 9.2 of a claim for payment or indemnity under Article IX by an Indemnified Party, specifying the nature of and basis for such claim. | |
| Indenture: the meaning set forth in Section 6.5(a). | |
| Individual Sellers: the meaning set forth in Section 11.18(a). | |
| Industrias Tecnos: Industrias Tecnos, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico. | |
| Insurance Amount: the meaning set forth in Section 6.15(b). | |
| Interest Amount: an amount equal to the sum of all interest paid in cash on the Senior Note A and the Senior Note B since February 12, 2003 up to the date immediately prior to the Closing Date. | |
| Interim Financial Statements: the meaning set forth in Section 4.24. | |
| Investment Assets: all debentures, notes and other evidences of indebtedness, stocks, securities (including rights to purchase and securities convertible into or exchangeable for other securities), interests in joint ventures and general and limited partnerships, mortgage loans and other investment or portfolio assets owned of record or beneficially by the Company or any of its Subsidiaries and issued by any Person other than the Company or any of its Subsidiaries (other than trade receivables generated in the ordinary course of business of the Company and its Subsidiaries). | |
| Investment Commitment Letter: the meaning set forth in Section 5.8. | |
| Investor: Cerberus Capital Management, L.P. | |
| IRS: the Internal Revenue Service. |
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| ITAR: the meaning set forth in Section 4.23(a). | |
| Leased Real Property: all real property interests leased by the Company or its Subsidiaries. | |
| Leases: the meaning set forth in Section 4.13(a). | |
| Licenses: the meaning set forth in Section 4.15(b). | |
| Lien: any mortgage, pledge, deed of trust, hypothecation, claim, security interest, title defect, encumbrance, burden, charge or other similar restriction, lease, sublease, claim, title retention agreement, option, easement, covenant, encroachment or other adverse claim. | |
| Loss: any and all damages, fines, fees, penalties, deficiencies, losses and expenses (including without limitation interest, court costs, reasonable and documented fees of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any claim, default or assessment). | |
| Management Amount: $4,000,000. | |
| Material Adverse Change: since any specified date, a material adverse change in the properties, assets, liabilities, business, or financial condition or results of operations of the Company and its Subsidiaries taken as a whole, in each case, other than as a result of (a) changes in general economic, regulatory or political conditions, (b) changes affecting the industries in which the Company and its Subsidiaries operate, or (c) changes in applicable law (except, in the case of clause (c), to the extent such changes have had a disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other participants in the industries in which the Company and its Subsidiaries operate). | |
| Material Adverse Effect: a material adverse effect on the properties, assets, liabilities, business, or financial condition or results of operations of the Company and its Subsidiaries taken as a whole, in each case, other than as a result of (a) changes in general economic, regulatory or political conditions, (b) changes affecting the industries in which the Company and its Subsidiaries operate, or (c) changes in applicable law (except, in the case of clause (c), to the extent such changes have had a disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other participants in the industries in which the Company and its Subsidiaries operate). | |
| Monthly Reports: the meaning set forth in Section 6.18. | |
| New Company SEC Reports: the meaning set forth in Section 6.14. |
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| Noteholders: the meaning set forth in Section 6.17(d). | |
| Notes: the meaning set forth in Section 6.17(a). | |
| Notes Payment: the meaning set forth in Section 6.5(c). | |
| Notes Payoff Amount: the meaning set forth in Section 6.5(c). | |
| OFAC: the meaning set forth in Section 4.23(a). | |
| Option: the meaning set forth in Section 1.2(a). | |
| Option Cancellation Payments: the meaning set forth in Section 1.2(a). | |
| Option Holder: the meaning set forth in Section 1.2(a). | |
| Option Percentage: for any Option Holder means the quotient of (a) the Option Cancellation Payment for such Option Holder divided by (b) the Total Proceeds. | |
| Option Shares: the meaning set forth in Section 1.2(a). | |
| Order: any writ, judgment, decree, injunction or similar order of any Governmental Entity (in each such case whether preliminary or final). | |
| Organizational Documents: (a) with respect to any corporation, its articles or certificate of incorporation or memorandum and articles of association and by-laws, (b) with respect to any partnership, its partnership agreement, (c) with respect to any trust, its trust agreement, and (d) with respect to any limited liability company, its operating agreement. | |
| Owned Intellectual Property: the meaning set forth in Section 4.15(a). | |
| Owned Real Property: the meaning set forth in Section 4.12(a). | |
| Permits: the meaning set forth in Section 4.11. | |
| Permitted Lien: (a) any Lien for Taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (b) any statutory Lien arising in the ordinary course of business by operation of law with respect to a liability that is not yet due or delinquent, (c) any minor imperfection of title, immaterial restriction on use or similar Lien which individually or in the aggregate with other such Liens does not materially impair the value of the property subject to such |
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| Lien or the use of such property in the conduct of the business of the Company or any Subsidiary and (d) any Lien arising as collateral under the Credit Agreement. | |
| Per Share Purchase Price: the meaning set forth in Section 1.1. | |
| Person: any natural person, firm, partnership, association, corporation, company, trust, business trust, Governmental Entity or other entity. | |
| Plans: the meaning set forth in Section 4.10(a). | |
| Real Property: the meaning set forth in Section 4.12(d). | |
| Remington: the meaning set forth in the recitals. | |
| Remington Audited Financial Statements: the meaning set forth in Section 4.4(b). | |
| Remington Interim Financial Statements: the meaning set forth in Section 4.4(b). | |
| Report: the meaning set forth in Section 7.3(a). | |
| Resolution Period: the period ending thirty (30) days following receipt by an Indemnified Party of a written notice from an Indemnifying Party stating that it disputes all or any portion of a claim set forth in a Claim Notice or an Indemnity Notice. | |
| RLC: Remington Licensing Corporation, a Delaware corporation. | |
| RLC Intellectual Property: all registrations and applications owned by RLC involving the “Remington” xxxx and licensed to the Company under a License. | |
| Sanctions Regulations: the meaning set forth in Section 4.23(a). | |
| SEC: the Securities and Exchange Commission. | |
| Securities Act: the meaning set forth in Section 4.4(a). | |
| Seller: the meaning set forth in the preamble. | |
| Seller Entity: any Seller, or any officer, director or Affiliate (other than the Company or any of its Subsidiaries) of any Seller, or any entity in which any Seller or any officer, director or Affiliate of any Seller owns more than 10% of the outstanding capital stock or other equity interests. |
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| Seller Indemnified Parties: each Seller and its officers, directors, employees, agents and Affiliates. | |
| Seller’s Indemnifying Parties: the meaning set forth in Section 9.1(b). | |
| Sellers’ Representative: the meaning set forth in Section 11.18(a). | |
| Senior Note A: the Senior Note A due 2011 in the principal amount of $26,673,948.32 as of December 31, 2006, dated as of February 12, 2003, between the Company, as payor, and CD Fund IV, as payee. | |
| Senior Note A Amount: the meaning set forth in Section 6.5(c). | |
| Senior Note B: the Senior Note B due 2012 in the principal amount of $18,534,860.74 as of December 31, 2006, dated as of February 12, 2003, between the Company, as payor, and CD Fund IV, as payee. | |
| Senior Note B Amount: the meaning set forth in Section 6.5(c). | |
| Share Number: the meaning set forth in Section 1.1. | |
| Shares: the meaning set forth in the recitals. | |
| Shares Purchase Price: the meaning set forth in Section 1.1. | |
| Stock Incentive Plans: the Amended and Restated RACI Holding, Inc. Stock Incentive Plan, as amended, and the RACI Holding, Inc. 2003 Stock Option Plan. | |
| Stock Option Agreements: the stock option agreements which have been entered into between the Company and each Option Holder with respect to the issuance to such Option Holder of any Options. | |
| Subsidiary: with respect to any Person (the “Parent”), any other Person (other than a natural person), whether incorporated or unincorporated, of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by the Parent or by one or more of its respective Subsidiaries or by the Parent and any one or more of its respective Subsidiaries. | |
| Supplemental Indenture: the meaning set forth in Section 6.17(e). | |
| Tax: any federal, state, provincial, local or foreign income, alternative, minimum, accumulated earnings, personal holding company, franchise, capital |
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| stock, profits, windfall profits, gross receipts, sales, use, value added, transfer, registration, stamp, premium, excise, customs duties, severance, real property, personal property, ad valorem, occupancy, license, occupation, employment, payroll, social security, disability, unemployment, workers’ compensation, withholding, estimated or other similar tax, assessment or other governmental charge of any kind whatsoever, including any interest, penalty, or addition thereto. | |
| Tax Return: any return, report, declaration, form, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto and including any amendment thereof that relates to the Company or any of its Subsidiaries. | |
| Third Party Claim: the meaning set forth in Section 9.2(a). | |
| Threshold Amount: the meaning set forth in Section 9.1(d). | |
| TIA: the meaning set forth in Section 6.17(c). | |
| Treasury Regulations: the regulations prescribed under the Code. | |
| Total Proceeds: the amount equal to the sum of (a) the Shares Purchase Price, (b) the aggregate amount of the Option Cancellation Payments, (c) the Notes Payoff Amount, and (d) the Interest Amount. |
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by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except as limited by laws affecting the enforcement of creditor’s rights generally or by general equitable principles. (a) The Company. As of the date hereof, the authorized capital stock of the Company consists solely of (i) 1,250,000 shares of Class A Common Stock, of which 205,208 shares are issued and outstanding and 726,390 shares are held in treasury, and (ii) 1,250,000 shares of Class B Common Stock, par value $.01 per share, none of which shares are outstanding. At the Closing, the Shares will constitute all of the issued and outstanding capital stock of the Company, will have been duly authorized and validly issued and will be fully paid and nonassessable. Schedule 1.1 lists all Persons owning of record any Shares and specifying for each such Person the number of Shares owned by such Person. (b) Deferred Shares. As of the date hereof, 5,851 Deferred Shares, each representing the right to receive a share of Class A Common Stock of the Company, are outstanding. The Deferred Shares constitute all of the outstanding deferred shares representing the right to receive any shares of capital stock of the Company. (c) Options. As of the date hereof, Options for the purchase of 10,635 shares of Class A Common Stock of the Company are outstanding. The Options constitute all of the outstanding options to acquire any shares of capital stock of the Company. There are no options outstanding to acquire any shares of capital stock of any of the Company’s Subsidiaries. (d) Subsidiaries. Schedule 4.2(d) lists for each Subsidiary of the Company the shares of capital stock or other equity interests of such Subsidiary that are authorized, the shares of capital stock or other equity interests of such Subsidiary that are issued and outstanding and the Persons owning such issued and outstanding shares. All issued and outstanding shares of capital stock of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned, beneficially and of record, by the Persons listed in Schedule 4.2(d) free and clear of any Liens other than as set forth on Schedule 4.2(d). (e) Agreements with Respect to Common Stock. Except as set forth in Sections 4.2(b) and 4.2(c) hereof or in Schedule 4.2(e), there are no (i) preemptive, rights of first refusal, registration or similar rights on the part of any holders of any class of securities of the Company or any of its Subsidiaries; (ii) subscriptions, options, warrants, |
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and its Subsidiaries for the nine months ending September 30, 2006 and an unaudited consolidated balance sheet of Remington and its Subsidiaries as at such date (the “Remington Interim Financial Statements”), and (iv) unaudited consolidated statements of operations, changes in stockholders’ equity and cash flows of the Company for the nine months ending September 30, 2006 and an unaudited consolidated balance sheet of the Company as at such date (the “Company Interim Financial Statements” and, together with the Audited Financial Statements and the Remington Interim Financial Statements, the “Financial Statements”). The Financial Statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) consistently applied (except as may be indicated in the notes thereto) throughout the periods indicated and present fairly in all material respects the financial condition of the Company, in the case of the Company Audited Financial Statements, the Company and its Subsidiaries on a consolidated basis in the case of the Company Interim Financial Statements, and Remington and its Subsidiaries on a consolidated basis, in the case of the Remington Audited Financial Statements and the Remington Interim Financial Statements, at the respective dates indicated and the results of operations and cash flows of the Company, in the case of the Company Audited Financial Statements, the Company and its Subsidiaries on a consolidated basis in the case of the Company Interim Financial Statements, and Remington and its Subsidiaries on a consolidated basis, in the case of the Remington Audited Financial Statements and the Remington Interim Financial Statements, for the respective periods indicated, except in the case of the Remington Interim Financial Statements and the Company Interim Financial Statements for the absence of footnotes and year-end adjustments. The Remington Audited Financial Statements and Remington Interim Financial Statements, when filed, complied as to form in all material respects with the rules and regulations of the SEC with respect thereto. (c) Since September 30, 2006, there has been no material change in the Company or Remington’s accounting methods or principles that would be required to be disclosed in the Company’s or Remington’s financial statements, respectively, in accordance with GAAP that has not been so disclosed. The management of Remington has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as set forth on Schedule 4.4(c), as of the date hereof, Remington has not identified any significant deficiencies or material weaknesses in the design or operation of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act), and there has been no incidence of fraud since January 1, 2003, whether or not material, that |
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| (i) suffered any damage, destruction or other casualty loss with respect to any asset or property owned, leased or otherwise used by the Company or any of its Subsidiaries, whether or not covered by insurance, in an amount exceeding $250,000 individually or $500,000 in the aggregate; | |
| (ii) other than pursuant to the Credit Agreement and any other payment of accounts payable or accounts receivables in the ordinary course of business, voluntarily purchased, canceled, pre-paid or completely or partially discharged in advance of a scheduled payment date with respect to, or waived any right of the Company or any of its Subsidiaries under any material indebtedness of or owing to the Company or any of its Subsidiaries; | |
| (iii) failed to perform, in any material respects, its obligations under the contracts and commitments applicable to its businesses or properties; | |
| (iv) (x) increased the salary, wages or other compensation of (A) any director, officer or employee having a base salary in excess of $100,000 per year or any business consultant of the Company or any of its Subsidiaries or (B) any other employee of the Company or any of its Subsidiaries in an amount greater than 5% per annum or $2,400,000 in the aggregate; (y) established or modified any (A) targets, goals, pools or similar provisions in respect of any fiscal year under any benefit plan, employment-related Contract or other employee compensation arrangement or (B) salary ranges, increase guidelines or similar |
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| provisions in respect of any benefit plan, employment-related Contract or other employee compensation arrangement; or (z) adopted, entered into or become bound by any benefit plan, employment-related Contract or collective bargaining agreement, amendment, modification or termination (partial or complete) of any benefit plan, employment-related Contract or collective bargaining agreement, or entered into any severance arrangement or paid any severance benefit without the employee agreeing to execute or executing a waiver and release in favor of Remington, its Affiliates and any successors thereto, in each case except to the extent required by applicable law or any Plan (as defined in Section 4.10(a)) or collective bargaining agreement provided to the Buyer; | |
| (v) Other than in the ordinary course of business as conducted on the date hereof, granted any discounts, rebates or similar incentives, either on a one-time or continuing basis or sold or delivered any product having payment terms of 152 days or more; or made any material change in (x) any pricing, investment, accounting, financial reporting, inventory, credit, allowance or policy of the Company or any of its Subsidiaries, or (y) any method of calculating any bad debt, contingency or other reserve of the Company or any of its Subsidiaries for accounting or financial reporting, or any change in the fiscal year of the Company or any of its Subsidiaries; | |
| (vi) (x) amended its Organizational Documents, (y) recapitalized, reorganized, liquidated or dissolved the Company or any of its Subsidiaries, or taken any action in contemplation of the foregoing or (z) merged or consummated any other business combination involving the Company or any of its Subsidiaries and any other Person; | |
| (vii) mortgaged, pledged or subjected to any Lien any of its properties or assets, except for Liens incurred in the ordinary course of business consistent with past practice; | |
| (viii) sold, leased or otherwise disposed of any of its fixed assets having a value in excess of $500,000 in any individual case or $2,000,000 in the aggregate; | |
| (ix) incurred any indebtedness with respect to which the obligations of the Company or its Subsidiaries exceed $100,000, other than indebtedness incurred pursuant to the Credit Agreement; | |
| (x) made capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in excess of $400,000 in any individual case; |
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| (xi) made any loan, advance or capital contribution to or investment in any Person, by the Company or any of its Subsidiaries, other than to or in the Company’s wholly-owned Subsidiaries in the ordinary course of business consistent with past practice; | |
| (xii) changed any annual Tax accounting period except as required by applicable law, adopted or changed any method of Tax accounting except as required by applicable law, entered into any Tax closing agreement, settled any Tax claim, audit or assessment in excess of $25,000, in each case, by the Company or any of its Subsidiaries; | |
| (xiii) made any authorization, issuance, sale or other disposition by the Company or any of its Subsidiaries of any shares of capital stock of or Option with respect to the Company or any of its Subsidiaries, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of or Option with respect to the Company or any of its Subsidiaries; | |
| (xiv) made any write-off or write-down of or any determination to write off or write down any of the assets and properties of the Company or any of its Subsidiaries in an aggregate amount exceeding $100,000 in any individual case; | |
| (xv) commenced or terminated any line of business; | |
| (xvi) disposed of, licensed, or incurred an adverse change (including disclosure thereof to any Person not bound by an obligation of confidentiality) in, any rights the Company or any of its Subsidiaries has under or to any, material Company Intellectual Property, other than the expiration thereof in accordance with its terms as described on Schedule 4.15(a); | |
| (xvii) settled any action, claim, suit or proceeding, threatened or pending, against the Company or any of its Subsidiaries for an amount exceeding $100,000 individually or $250,000 in the aggregate; or | |
| (xviii) entered into any agreement to do or engage in any of the foregoing after the date hereof. |
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(b) Except as set forth in Schedule 4.6(b), since September 30, 2006, none of the Company or any of its Subsidiaries has: |
| (i) declared, set aside or paid any dividend or other distribution with respect to the capital stock of the Company or any Subsidiary not wholly owned by the Company, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock or |
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| any option with respect to the Company or any Subsidiary not wholly owned by the Company; | |
| (ii) entered into any transaction with, made any payment, loan or advance to (other than the granting or payment of employee base salaries, bonuses or benefits, or director fees or expense reimbursements, in each case, in the ordinary course of business), transferred any asset to, or assumed any liability of or with respect to, any Seller Entity; or | |
| (iii) entered into any agreement to do or engage in any of the foregoing after the date hereof. |
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(c) Except as set forth on Schedule 4.6(c), since December 31, 2005 none of the Company or any of its Subsidiaries has sold, leased, transferred or otherwise disposed of any artwork, historic firearms memorabilia, antiques and other items of historic or artistic significance owned by the Company or any of its Subsidiaries. Except as set forth in Schedule 4.7(a) to 4.7(t): (a) Filing of Returns and Payment of Taxes. All Income Tax Returns and all other material Tax Returns required to be filed on or before the Closing Date by the Company and its Subsidiaries have (or by the Closing Date will have) been duly filed or the time for filing such Tax Returns shall have been validly extended to a date after the Closing Date. All such Tax Returns were (or by the Closing Date will be) true, complete and correct in all material respects and filed on a timely basis. Except as specifically reserved against in the Financial Statements (including as reflected on associated work papers), the following Taxes (collectively, “Company Taxes”) have (or by the Closing Date will have) been duly paid: (i) all Taxes shown to be due on any Tax Return required to be filed on or before the Closing Date (after giving effect to valid extensions) and (ii) all Taxes due and payable on or before the Closing Date by the Company or any of its Subsidiaries or chargeable as a Lien (except for Permitted Liens) upon the assets thereof (whether or not shown on any Tax Return). As of the date hereof, all adjustments of federal Tax liability resulting from the resolution of any audit or proposed deficiency have been reported to appropriate state and local Taxing authorities and all resulting Taxes payable to state and local Taxing authorities have been paid. All material Employment and Withholding Taxes required to be withheld and paid on or before the Closing Date have (or by the Closing Date will have) been duly paid to the proper Governmental Entity or properly set aside in accounts for such purpose. (b) Extensions, etc. As of the date hereof no written agreement, waiver or other document extending, or having the effect of extending, the period of assessment or collection of any Company Taxes or Employment and Withholding Taxes, and no power |
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of attorney with respect to any such Taxes, has been executed or filed with the IRS or any other taxing authority. (c) Audits; etc. Schedule 4.7(c) sets forth an accurate list of all Tax audits that have occurred within the three-year period preceding the date hereof, together with their status as either “open” or “closed”. No deficiency for any Taxes has been proposed, asserted or assessed against the Company (or any Subsidiary) that has not been resolved or paid in full. (d) Tax Sharing Agreements. Neither the Company nor any of its Subsidiaries is a party to or bound by or has any obligation under any Tax sharing agreement or arrangement with a third party concerning the liability of the Company or any of its subsidiaries for Taxes arising out of the filing of a consolidated, combined or unitary Tax Return with such third party. (e) Other Jurisdictions. No jurisdiction (whether within or without the United States) in which the Company or any of its Subsidiaries has not filed a Tax Return has asserted that the Company or such Subsidiary is required to file such Tax Return in such jurisdiction. Schedule 4.7(e) lists all states and all non-U.S. taxing jurisdictions in which the Company or any of its Subsidiaries files any Tax Returns and indicates in the case of income or franchise Tax filings whether such filings are made on a consolidated, combined or unitary basis and the state allocation factors for the most recent taxable year for which filings have been made. (f) Withholding. The Company and its Subsidiaries have complied in all material respects (and until the Closing Date will comply in all material respects) with all applicable laws, rules, and regulations relating to the payment and withholding of Taxes (including withholding and reporting requirements under Code sections 1441 through 1464, 3401 through 3406, 6041 and 6049 and similar provisions under any other laws). (g) Tax Rulings, etc. Within the three-year period preceding the date hereof, neither the Company nor any of its Subsidiaries has received any written ruling of a taxing authority relating to Taxes, or any other written and legally binding agreement with a taxing authority relating to Taxes. (h) Copies of Tax Returns. The Company has made available (or, in the case of Tax Returns to be filed on or before the Closing Date, will make available) to the Buyer complete and accurate copies of all Tax Returns and associated work papers filed by or on behalf of the Company and its Subsidiaries for all taxable years ending on or prior to the Closing Date. (i) Distributing Corporation, etc. Neither the Company nor any of its Subsidiaries is or has been a “distributing corporation” or a “controlled corporation” within the meaning of Code section 355. |
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(j) Tax-Exempt Bond Financed Property. No property of the Company (or any of its Subsidiaries) is “tax-exempt bond financed property” within the meaning of Code §168(g)(5). (k) Accounting Method, etc. Neither the Company nor any of its Subsidiaries is required to include in income any adjustment pursuant to Code section 481(a) by reason of a voluntary change in accounting method initiated by the Company (or any of its Subsidiaries), and the IRS has not proposed an adjustment or change in accounting method. All portions of deferred revenues (for financial accounting purposes) have, as of the date hereof, been included in gross income for U.S. federal income tax purposes. (l) Intercompany Transactions. Consummation of the transactions contemplated by this Agreement will not cause the Company or any of its Subsidiaries to recognize income or gain pursuant to Code section 481 or any provisions of the consolidated return regulations issued pursuant to Code section 1502 (including the regulations governing intercompany transactions and excess loss accounts). (m) Partnership. Neither the Company nor any of its Subsidiaries is a partner in a partnership (or an equity holder in any entity treated as a partnership for federal, state, or foreign income tax purposes). (n) International Boycott. Neither the Company nor any of its Subsidiaries has participated in or cooperated with any international boycott within the meaning of Code section 999. (o) Acquisition Indebtedness. Neither the Company nor any of its Subsidiaries has issued or assumed any acquisition indebtedness within the meaning of Code section 279 or is a borrower under any loan to which the limitations of Code section 163(j) apply. (p) USRPHC. The Company is not a United States real property holding corporation within the meaning of Code section 897(c)(2). (q) Listed Transactions. Neither the Company nor any of its Subsidiaries has engaged in any listed transactions within the meaning of Treasury Regulation section 1.6011-4(b)(2). (r) Transfer Pricing. The Company and its Subsidiaries have properly maintained the documentation necessary to avoid penalties as to transfer pricing pursuant to Code section 6662(e). (s) Gain Recognition Agreement. Neither the Company nor any of its Subsidiaries is a party to a gain recognition agreement pursuant to Code section 367. |
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compensation, vacation, pension, retirement, profit-sharing, savings, stock option or other equity-based, severance, medical, life, disability, accident and other fringe benefit plans and arrangements with respect to one or more current and former employees currently maintained or contributed to by the Company or any of its Subsidiaries (collectively, the “Plans”) that are material. (b) Each Plan has been operated and administered in accordance with its terms and with applicable law and regulations, including, but not limited to, ERISA and the Code and the regulations thereunder, where applicable, except for any failure to so operate and administer any Plan that would not, individually or in the aggregate, reasonably be expected to result in a material liability. Each Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for a determination letter is currently pending with the IRS, and to the knowledge of the Company there are no currently existing circumstances likely to result in the revocation of, or the denial of or failure to issue any such favorable determination letter. Except as set forth in Schedule 4.10(b) which shall contain a description of the claim and potential liability, there is no pending or, to the knowledge of the Company, threatened legal action, suit or claim relating to the Plans (other than routine claims for benefits) that would, individually or in the aggregate, reasonably be expected to result in a material liability. Neither the Company nor any of its Subsidiaries has engaged in a transaction with respect to any Plan that, assuming the taxable period of such transaction expired as of the date hereof, would reasonably be expected to subject the Company or any of its Subsidiaries to a Tax or penalty imposed by either section 4975 of the Code or section 502(i) of ERISA that would, individually or in the aggregate, reasonably be expected to result in a material liability. Except as set forth on Schedule 4.10(b), each Plan which is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) that the Company is a party to has been operated and administered since January 1, 2005 in good faith compliance with Section 409A of the Code. (c) No Plan that is subject to section 302 of ERISA or section 412 of the Code has incurred an “accumulated funding deficiency,” within the meaning of Section 302 of ERISA or section 412 of the Code, and no “reportable event,” within the meaning of Section 4043 of ERISA, has occurred with respect to any Plan that is subject to Title IV of ERISA that would reasonably be expected to result in the termination of such Plan. No Plan is a “multiemployer plan” within the meaning of Section 3(37) of ERISA. (d) Except as set forth on Schedule 4.10(d), all contributions required under ERISA or the Code to have been made by the Company and its Subsidiaries to each Plan have been timely made. Neither the Company nor any of its Subsidiaries is in default in performing any of its contractual obligations under any of the Plans or any |
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related trust agreement or insurance contract, except for any default that would not, individually or in the aggregate, reasonably be expected to result in a material liability. There are no material outstanding liabilities of, or related to, any Plan, other than liabilities for benefits to be paid in the ordinary course to participants in such benefit plan and their beneficiaries in accordance with the terms of such Plan. (e) With respect to each Plan, the Company has provided or made available to the Buyer true and complete copies of the following documents, to the extent applicable: (i) the most recent Plan document, any related agreements and all amendments thereto; (ii) the most recent Form 5500 filed with respect to the Plan; (iii) the most recent summary plan description; (iv) the most recent determination letter issued by the IRS; (v) the most recent financial statements prepared with respect to the Plan; and (vi) the most recent actuarial report of the qualified actuary of any Plan with respect to which actuarial valuations are conducted. (f) Except as set forth on Schedule 4.10(f), no Plan provides former employees of the Company or any of its Subsidiaries with post-employment benefits by reason of employment with the Company or any of its Subsidiaries, other than (i) as mandated by Section 4980B of the Code, (ii) pension benefits payable under any Plan or (iii) where the cost thereof is borne entirely by the former employee (or his or her eligible dependents). Except as set forth on Schedule 4.10(f), each Plan providing death or post employment welfare benefits may be amended, modified or terminated after the Closing Date without cost or liability other than for claims for expenses actually incurred prior to the date of such amendment, modification or termination. All Plans subject to Section 4980B of the Code providing postretirement welfare benefits provide such benefits in accordance with the requirements of Section 4980B of the Code, except to the extent any noncompliance would not, individually or in the aggregate, reasonably be expected to result in a material liability. (g) Except as set forth on Schedule 4.10(g) or otherwise provided by this Agreement, the consummation of the transactions contemplated by this Agreement will not result in the acceleration of the vesting or timing of payment of any compensation or benefits payable under any Plan to or in respect of any employee of the Company or its Subsidiaries. None of the transactions contemplated by this Agreement will or could result in any payment under any Plan or otherwise that would constitute an “excess parachute payment” for purposes of Section 280G or 4999 of the Code. (h) The fair market value of the assets of each qualified defined benefit Plan, as determined as of the last day of the plan year of such Plan which coincides with or first precedes the date of this Agreement, was not less than the present value of the projected benefit obligations under such Plan at such date as established by more than $45 million on the basis of the actuarial assumptions applicable under such defined benefit Plan at said date. |
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application, petition, objection or other pleading with any Governmental Entity that challenges or questions the validity of or any rights of the holder under any material Permit, except for such applications, petitions, objections or other pleadings that would not, individually or in the aggregate, reasonably be expected to materially interfere with the conduct of such holder’s operations in the manner in which they are presently conducted. This Section 4.11 does not relate to environmental matters, which are instead the subject of Section 4.18. (a) Schedule 4.12(a) contains a complete and correct list of all real property currently owned by the Company or any of its Subsidiaries (the “Owned Real Property”). (b) Except as disclosed in Schedule 4.12(b), the Company or one of its Subsidiaries, as the case may be, has good and marketable fee simple title to the Owned Real Property free and clear of any Liens (other than Permitted Liens). The Company or one of its Subsidiaries is in possession of each parcel of real property owned by it, together with all buildings, structures, facilities, fixtures and other improvements thereon. The Company and its Subsidiaries have adequate rights of ingress and egress with respect to the real property listed in Schedule 4.12(a) and all buildings, structures, facilities, fixtures and other improvements thereon. (c) Except as set forth in Schedule 4.12(c), there are no outstanding options or rights of first refusal to purchase the Owned Real Property, or any portion thereof or interest therein. (d) Except as set forth in Schedule 4.12(d), the Owned Real Property and the Leased Real Property (collectively, the “Real Property”), together with easements appurtenant thereto, include all of the real property used or held for use in connection with or otherwise required to carry on the business of the Company and its Subsidiaries. The improvements on the Real Property are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted and are adequate and suitable for the purposes for which they are presently being used. To the knowledge of the Company, there are no condemnation or appropriation proceedings pending or threatened against any Real Property or the improvements thereon. (a) Schedule 4.13(a) contains a complete and correct list of all real property leases relating to the Leased Real Property to which the Company or any of its Subsidiaries is a party or is bound (the “Leases”). The Company has made available to the Buyer correct and complete copies of the Leases. Except as disclosed in Schedule 4.13(a), (i) each of the Leases is in full force and effect and, to the knowledge |
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Company or any of its Subsidiaries of the foregoing, except in each case for infringements or claims that, individually or in the aggregate, would not reasonably be expected to materially interfere with the conduct of their operations in the manner in which they are currently conducted. (b) Schedule 4.15(b) sets forth a complete and correct list, as of the date hereof, of all Licenses. The term “Licenses” means all material written licenses to which the Company or any of its Subsidiaries is a party, pursuant to which (i) the Company or such Subsidiary grants any Person any royalty-bearing or exclusive right to use any of the Intellectual Property, or (ii) any Person or entity grants the Company or such Subsidiary the right to use any trademarks, service marks, trade names, copyrights, software (other than commercially available software) or patents not owned by the Company or any of its Subsidiaries that are used in or necessary for the conduct of the business of the Company or any of its Subsidiaries as currently conducted. The Company has furnished or made available to the Buyer complete and correct copies of the Licenses listed in Schedule 4.15(b). Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party thereto, is in default under any License, and each License is legal, valid, binding and enforceable and in full force and effect as to the Company or its Subsidiary party thereto, and to the knowledge of the Company, as to each other party thereto, except for such defaults and failures to be so in full force and effect as would not, individually or in the aggregate, reasonably be expected to be materially adverse to the Company and its Subsidiaries, taken as a whole. (c) Except as set forth on Schedules 4.15(a) and 4.15(b): |
| (i) with respect to each item of Owned Intellectual Property and each License involving the “Remington” xxxx, the item is not subject to any outstanding injunction, judgment, order, decree, ruling or charge, nor, to the knowledge of the Company, is any of the foregoing threatened; | |
| (ii) with respect to each item of Owned Intellectual Property and each License involving the “Remington” xxxx, no claim or investigation is pending or, to the knowledge of the Company, threatened which challenges the legality, validity, enforceability, use or ownership of the item; and | |
| (iii) all registrations with and applications to governmental or regulatory authorities in respect of the Owned Intellectual Property and RLC Intellectual Property are valid and in full force and effect. |
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| following types of contracts and agreements to which the Company or any of its Subsidiaries is a party, excluding any Leases, Licenses and Plans: |
| (i) all written contracts and agreements with current officers, other employees, consultants, advisors, sales representatives of the Company or a Subsidiary thereof, other than (x) contracts and agreements that by their terms may be terminated or canceled by the Company or a Subsidiary thereof with notice of not more than the greater of 120 days and the period of notice required under applicable law, in each case, without penalty, (y) contracts and agreements relating to severance payments not in excess of $200,000 individually or $500,000 in the aggregate and (z) contracts and agreements that provide for payments based solely on products sold and require no minimum payments; | |
| (ii) all collective bargaining agreements with any labor union or other employee representative currently representing employees of the Company or any of its Subsidiaries; | |
| (iii) all mortgages, indentures, security agreements, notes, loan agreements or guarantees of the obligations of a third party (other than the Company or any of its Subsidiaries); | |
| (iv) all joint venture, limited partnership, limited liability company, partnership or shareholder agreements; | |
| (v) contracts, agreements and other instruments and arrangements (excluding individual purchase orders) for the purchase by the Company and its Subsidiaries of materials, supplies, products or services, and contracts, agreements and other instruments or arrangements (excluding individual purchase orders) for the sale or provision by the Company and its Subsidiaries of materials, supplies, products or services, in each case, not terminable on notice of 90 days or less without penalty, and under which the amount that would reasonably be expected to be paid or received by the Company or its Subsidiaries exceeds $250,000 per annum or $1,000,000 in the aggregate; | |
| (vi) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise); | |
| (vii) any agreement that (x) limits the freedom of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any area or that would so limit the freedom of the Company or any of its Subsidiaries after the Closing or (y) contains exclusivity obligations or restrictions binding on the Company or any of its Subsidiaries; |
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| (viii) any agreement relating to any interest rate, derivatives or hedging transaction; | |
| (ix) stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is bound relating to the voting, purchase, redemption or other acquisition of any shares of the capital stock of the Company or any of its Subsidiaries, Industrias Tecnos or RLC; | |
| (x) all contracts that (x) limit or contain restrictions on the ability of the Company or any of its Subsidiaries to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur indebtedness, to incur or suffer to exist any Lien, to purchase or sell any assets and properties, to change the lines of business in which it participates or engages or to engage in any merger, consolidation or other business combination or (y) require the Company or any of its Subsidiaries to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and | |
| (xi) any other contract or agreement involving aggregate payments in excess of $1,000,000, to be made by or to the Company or any of its Subsidiaries after the date hereof. |
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| (a) The Company and its Subsidiaries are in material compliance and have at all times since December 1, 1993 complied in all material respects with all applicable Environmental Laws; | |
| (b) (i) the Company and its Subsidiaries have obtained, and are in compliance in all material respects with, all permits, licenses, approvals and authorizations required for their facilities and operations under applicable Environmental Laws and (ii) no actions are pending, or to the knowledge of the Company, threatened to revoke, terminate, modify, amend, limit, challenge or appeal any such permits, licenses, approvals or authorizations; | |
| (c) Neither the Company nor any of its Subsidiaries has received from any Governmental Entity or any other Person any written or other notice of any material violation or alleged material violation of, material non-compliance with, or any material liability, potential material liability or any material investigatory, corrective or remedial obligation under any applicable Environmental Laws concerning any of their current or former facilities acquired on or after December 31, 1993 or operations or the Real Property other than any such violation, non-compliance, liability or obligation that has been fully resolved, including with respect to paying any fines, penalties, assessments or corrective action costs and completing, to the satisfaction of Governmental Entities, any investigation, remediation or corrective action; | |
| (d) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Company, threatened, under any applicable Environmental Law pursuant to which the Company or any of its Subsidiaries is or will be named as a party with respect to any of their current or former facilities (excluding any former facilities not acquired, directly or indirectly, by the Company or its Subsidiaries on or after December 1, 1993) or operations or the Real Property; | |
| (e) Since December 1, 1993 neither the Company nor any of its Subsidiaries has entered into any agreement with any Governmental Entity pursuant to which the Company or any of its Subsidiaries has assumed |
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| responsibility for the investigation, remediation or corrective action of any condition resulting from the release, handling, treatment, storage, disposal, transportation or arrangement for or permitting the disposal of Hazardous Substances other than such agreements that do not have any continuing or unsatisfied investigatory, corrective or remedial obligations or liabilities under any Environmental Law; | |
| (f) Neither the Company, any of its Subsidiaries nor any of their respective predecessors (excluding any predecessors not acquired, directly or indirectly, by the Company on or after December 1, 1993) or Affiliates has (i) treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any Hazardous Substance that has given or would reasonably be expected to give rise to any material liabilities or any material investigative, corrective or remedial obligations under any Environmental Law or (ii) expressly or by operation of law, assumed or undertaken any material liability, including without limitation any material obligation for corrective or remedial action, of any other Person under any Environmental Laws, other than any such liabilities or obligations in clauses (i) and (ii) above that have been fully resolved, including with respect to paying any fines, penalties, assessments or corrective action costs and completing, to the satisfaction of Governmental Entities, any investigation, remediation or corrective action; | |
| (g) To the knowledge of the Company, none of the following exists at the Real Property: (i) underground storage tanks containing or previously containing any Hazardous Substance; (ii) asbestos-containing material in any form or condition in violation of Environmental Law; (iii) materials or equipment containing polychlorinated biphenyls requiring investigation, remediation or corrective action by the Company or any Subsidiary; or (iv) landfills, surface impoundments, or other disposal areas requiring investigation, remediation or corrective action by the Company or any Subsidiary; | |
| (h) No Hazardous Substances are present at or have been released on, under, at or from the Real Property or have been arranged for disposal at any other location since December 31, 1993, that have given or would reasonably be expected to give rise to a material liability or a material investigatory, corrective or remedial obligation of the Company or any of its Subsidiaries under any applicable Environmental Law; and | |
| (i) All material environmental site assessments, compliance audits and similar environmental reports relating to environmental costs, liabilities or conditions with respect to the Real Property or the current or former operations of the Company or any of its Subsidiaries created in connection with the acquisition of the Remington business on December 1, 1993 or thereafter have been provided to the Buyer. |
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| (i) there are no labor strikes, slowdowns, work stoppages, lockouts or material labor disputes currently pending or, to the knowledge of the Company, threatened, and, since January 1, 2003, neither the Company nor any of its Subsidiaries has experienced any labor strike or material concerted labor dispute, and there are no pending or, to the knowledge of the Company threatened, labor disputes, or to the knowledge of the Company any organizing activities or applications for certification of a collective bargaining unit; | |
| (ii) neither the Company nor any of its Subsidiaries has engaged in, or is now engaging in, any unfair labor practice, unlawful discrimination, wage and hour violation or unlawful occupational safety or health practice in the conduct of the business which, if the Company or any of its Subsidiaries would be penalized as a result of and/or have to cure to become in compliance with applicable law, would, individually or in the aggregate, reasonably be expected to materially impair the continued operation of the business after the Closing Date on substantially the same basis as presently operated; | |
| (iii) the Company and its Subsidiaries have complied, and are now in compliance, in all material respects with all applicable labor and employment laws in connection with the employment of their respective employees, including with respect to unlawful discrimination, payment of wages and other amounts, occupational safety and health, plant closings, layoffs and collective bargaining obligations, except where the failure to so comply, individually or in the aggregate, would not reasonably be expected to result in a material liability; | |
| (iv) except where a claim, proceeding or dispute, individually or in the aggregate, would not reasonably be expected to result in a material liability, there have not been in the last three (3) years and there are not presently pending, existing, or to the knowledge of the Company threatened, (x) any proceeding |
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| against or affecting the Company or any of its Subsidiaries relating to the alleged violation of any law pertaining to labor relations or employment matters, including any charge or complaint filed by or on behalf of any current or former employee of the Company or any of its Subsidiaries or any union or other employee representative with the National Labor Relations Board, the Equal Employment Opportunity Commission, the Department of Labor, or any comparable Governmental Entity, or other labor or employment dispute against or affecting the Company or any of its Subsidiaries, (y) labor grievance, arbitration or employment related proceeding, claim, action or litigation or (z) to the knowledge of the Company, any organizing activity or employment-related investigation; | |
| (v) to the knowledge of the Company, neither the Company nor any of its Subsidiaries has any material liability to any Person (other than the Company or any Subsidiary) arising from the Company’s or any of its Subsidiaries’ status as a successor employer, joint employer, alter ego or other legal doctrine that would cause the Company or any of its Subsidiaries to have any co-liability with or liability derived from another entity, in each case under labor law or laws governing employment; | |
| (vi) As of February 28, 2007 there are no material claims against the Company or any of its Subsidiaries with respect to workers’ compensation; and | |
| (vii) neither the Company nor any of its Subsidiaries is a party to or bound by any Contract or other agreement with any labor union or similar organization representing their respective employees. |
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| (i) The Company and its Subsidiaries have complied with all material terms and conditions of such Government Contract or Government Bid, including all clauses, provisions and requirements incorporated expressly, by reference or by operation of law therein; | |
| (ii) All representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract or Government Bid were, to the knowledge of the Company, complete and correct as of their effective date, and the Company and its Subsidiaries have complied with all such representations and certifications, except where the failure to be complete and correct or so |
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| comply would not reasonably be expected to materially interfere with the conduct of their operations in the manner in which they are presently conducted; | |
| (iii) Neither the United States Government nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries, either in writing or, to the knowledge of the Company, verbally, that the Company or any of its Subsidiaries has breached or violated any law, regulation, certification, representation, clause, provision or requirement pertaining to such Government Contract or Government Bid, except for breaches or violations that would not, individually or in the aggregate, reasonably be expected to materially interfere with the conduct of their operations in the manner in which they are presently conducted; | |
| (iv) No termination for convenience, cure notice or show cause notice is currently in effect pertaining to such Government Contract, and such Government Contract was not terminated for default; | |
| (v) No material cost incurred by the Company or any of its Subsidiaries pertaining to such Government Contract or Government Bid has been formally questioned or challenged, is, to the knowledge of the Company, the subject of any investigation or has been disallowed by the United States Government, and no material amount due to the Company or any of its Subsidiaries pertaining to such Government Contract or Government Bid has been withheld or set-off nor has any claim been made to withhold or set-off money; and | |
| (vi) Neither the Company nor any of its Subsidiaries has received any written adverse or negative assessment of its performance under any Government Contract. |
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(c) Investigations and Audits. Except as set forth on Schedule 4.22(c), with respect to the Company and its Subsidiaries: (i) neither the Company, its Subsidiaries nor any of the Company’s “Principals” as such term is defined in FAR 52.209-5 is, or during the last three years has been, under administrative, civil or criminal investigation or audit (other than routine inquiries, audits and reconciliations) by the United States Government or under any internal audit by the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract or Government Bid; (ii) during the last three years, neither the Company nor any of its Subsidiaries has conducted or initiated any material internal investigation or made a voluntary disclosure to the United States Government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid and neither the Company nor any of its Subsidiaries is currently subject to any administrative agreement relating to a Government Contract or Government Bid, and (iii) during the last three |
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still pending. The Company and its Subsidiaries have timely filed any such pending applications, and such applications were complete and accurate when filed. In the case of any such transfer where the Company or any of its Subsidiaries may be relying upon any exception or exemption in the ITAR, the Company or such Subsidiary is complying with the conditions for such an exemption and is documenting such compliance. (d) EAR and OFAC Licenses. Since January 1, 2002, for articles, technology, technical data, software, or services which are not subject to the ITAR, the Company and its Subsidiaries have obtained and are materially complying with all necessary export licenses or other approvals from the Bureau of Industry and Security (“BIS”), Department of Commerce, or the OFAC, Department of the Treasury, for the export to any foreign person or destination of any article, technology, software, other technical data, or service, except for transactions where applications for such licenses or other governmental approvals are still pending. The Company and its Subsidiaries have timely filed any such pending applications, and such applications were complete and accurate when filed. In the case of any such export where the Company or any of its Subsidiaries may be relying upon any exception or exemption in the EAR or Sanctions Regulations, the Company or such Subsidiary is complying with the conditions for such exemption or exception and is documenting such compliance. (e) Except as disclosed in Schedule 4.23(e): |
| (i) Since January 1, 2002, (x) neither the Company nor any of its Subsidiaries has been informed by any Governmental Entity that there is any ongoing governmental compliance investigation with respect to export compliance or (y) any such investigation has been resolved and fully disclosed to the Buyer; | |
| (ii) Since January 1, 2002, neither the Company nor any of its Subsidiaries has filed a voluntary self disclosure or equivalent notification with any of DDTC, BIS, OFAC, or the Department of Justice, or any other government agency concerning potential violations of applicable export control laws, rules, and licenses; | |
| (iii) Since January 1, 2002, none of the Company, its Subsidiaries, its officers, directors, employees, and, to the knowledge of the Company, foreign distributors, or foreign sales representatives has been a party to any administrative or judicial export control enforcement proceeding; | |
| (iv) none of the Company, its Subsidiaries, its officers, directors, employees, foreign sales representatives, foreign brokers, or foreign distributors is included on any of the lists of specially designated nationals published by OFAC, debarred or suspended parties published by DDTC, or parties subject to a |
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| temporary or final export denial order published by BIS; none of the Company’s or any of its Subsidiaries export licenses have been suspended or revoked; | |
| (v) none of the Company, its Subsidiaries, its officers, or directors are ineligible to contract with, or to receive a license or other approval to export or temporarily import defense articles or defense services from any agency of the United States Government; and | |
| (vi) Since January 1, 2002, none of the Company, its Subsidiaries, its officers, directors or employees have been indicted for or convicted of any of the offenses listed in 22 C.F.R. section 120.27. |
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business hours, to the properties, books and records in its possession relating to the Company and its Subsidiaries as the Buyer may reasonably request, including with respect to transition planning, provided that neither the Buyer nor any of its representatives shall undertake or cause to be undertaken prior to the Closing any intrusive sampling or analysis or subsurface investigation, without the prior written consent of the Company and the Sellers. All information provided or obtained pursuant to the foregoing shall be held by the Buyer in accordance with and subject to the terms of the Confidentiality Agreement, dated July 31, 2006, between Cerberus Capital Management, L.P. and Remington (the “Confidentiality Agreement”). The Buyer hereby agrees that, prior to the Closing, the provisions of the Confidentiality Agreement will apply to any properties, books, records, data, documents and other information relating to the Company and the Sellers provided to the Buyer or its Affiliates or any of their respective advisers or employees pursuant to this Agreement. (b) From the date of execution of this Agreement, the Buyer (and its senior employees, senior advisors, directors and officers) may contact and communicate with Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxx X. Little and Xxxxxx X. Xxxxxxx and may contact and communicate with Xxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxx Xxxxx and Xxxxx Xxxxx with prior notice to Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx or Xxxxxx X. Xxxxxxx. From the date of execution of this Agreement, the Buyer (and all of its agents and Affiliates and any employees, directors and officers thereof) shall not contact and communicate with the other employees of the Company and its Subsidiaries, and shall not contact the customers, suppliers, business consultants, licensors and licensees of, the Company and its Subsidiaries in connection with the transactions contemplated hereby without prior written notice to, and the consent of Xxxxxxx X. Xxxxxxx or Xxxxxx X. Xxxxxxx, which consent shall not be unreasonably withheld and may be conditioned upon an officer of the Company being present at any such meeting or conference requested by the Buyer. (a) The Sellers agree that neither the Company nor any of its Subsidiaries nor any Seller nor any of their respective officers and directors shall, and the Sellers shall direct and use their commercially reasonable efforts to cause the Company’s employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to stockholders of the Company) with respect to a merger, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to |
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covenants and agrees to provide (or to cause to be provided) immediately available funds to Remington for the full payment (including any applicable premiums or consent solicitation fees, and all related fees and expenses) at the Closing Date (or if later at the expiration date of the Debt Tender Offer) of all Notes properly tendered and not withdrawn (or consents received and not withdrawn) to the extent required pursuant to the terms of the Debt Tender Offer. The Debt Tender Offer and other actions taken in connection therewith shall be conducted in accordance with the terms of the Indenture and all applicable rules and regulations of the SEC and other applicable laws. (c) The Company shall cause Remington to waive any of the conditions to the Debt Tender Offer as may be reasonably requested by the Buyer (other than the conditions that the Debt Tender Offer is conditioned on the Closing as provided in clause (b) above and that there shall be no law prohibiting consummation of the Debt Tender Offer), so long as such waivers would not cause the Debt Tender Offer to violate the Indenture, Exchange Act, the Trust Indenture Act of 1939, as amended (the “TIA“), or any other applicable law, and shall cause Remington not to, without the prior written consent of the Buyer, waive any condition to the Debt Tender Offer or make any change, amendment or modification to the terms and conditions of the Debt Tender Offer (including any extension thereof) other than as agreed between the Buyer and the Company or as required to comply with applicable law. (d) Buyer shall prepare, in consultation with the Company and Remington, as promptly as practicable, a consent statement and/or an offer to purchase and consent statement in respect of the applicable Debt Tender Offer, together with any required related letters of transmittal and similar ancillary agreements (such documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Debt Tender Offer Documents”). Buyer and the Company shall, and the Company shall cause Remington to, reasonably cooperate with each other in the preparation of the Debt Tender Offer Documents (provided that the Company’s and Remington’s cooperation shall be limited to matters that Buyer cannot accomplish without additional cost or delay without the assistance of Remington). The Debt Tender Offer Documents (including all amendments or supplements) and all mailings to the beneficial owners of the Notes in connection with the Debt Tender Offer shall be subject to the prior review and of, and comment by, the Buyer and the Company and shall be reasonably acceptable to each of them. The Company shall cause Remington to use its commercially reasonable efforts to cause to be disseminated to the record holders of the Notes, and to the extent known by the Company or Remington, the beneficial owners of the Notes (collectively, the “Noteholders”) the Debt Tender Offer Documents. If at any time prior to the acceptance of Notes pursuant to the Debt Tender Offer any event should occur that is required by applicable law to be set forth in an amendment of, or a supplement to, the Debt Tender Offer Documents, the Company shall cause Remington to use commercially reasonable efforts to prepare and disseminate such amendment or supplement; provided however, that prior to such dissemination, the Company shall provide copies thereof to the Buyer |
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not less than two business days (or such shorter period of time as the Company reasonably believes is necessary in light of the circumstances) in advance of any such dissemination and shall consult with the Buyer with respect to such amendment or supplement, and shall include in such amendment or supplement all comments reasonably proposed by the Buyer to the extent consistent with applicable law. The Company shall comply with the requirements of Rule 14e—1 promulgated under the Exchange Act, the TIA, and any other applicable law in connection with the Debt Tender Offer and such compliance shall not constitute a breach thereof. (e) Promptly following the expiration date of any consent solicitation under the Debt Tender Offer, assuming the requisite consents from Noteholders (including from Persons holding proxies from the Noteholders) have been received, the Company shall cause Remington to use commercially reasonable efforts to cause an appropriate supplemental indenture (the “Supplemental Indenture”) to become effective concurrently with the Closing, and providing for the amendments of the Indenture contemplated in the Debt Tender Offer Documents; provided however, that notwithstanding the fact that the Supplemental Indenture may become effective earlier, the proposed amendments set forth therein shall not become operative unless and until all conditions to the Debt Tender Offer have been satisfied or waived by Remington in accordance with the terms hereof and thereof and Remington accepts all Notes (and related consents) validly tendered for purchase and payment pursuant to the Debt Tender Offer, whereupon such proposed amendments shall become operative. The form and substance of the Supplemental Indenture shall be reasonably satisfactory to the Buyer and the Company. (f) If this Agreement is terminated pursuant to Section 10, Buyer shall promptly reimburse the Company or Remington for all reasonable and documented out-of-pocket costs, fees and expenses (including legal fees and expenses, printing costs, and the out-of-pocket costs, fees and expenses of any dealer manager, information agent, depositary or the other agent retained in connection with the Debt Tender Offer) incurred by or on behalf of the Company or Remington in connection with the Debt Tender Offer. The Buyer shall indemnify and hold harmless the Company, its Subsidiaries, their respective officers, directors and representatives and each person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act for any loss or liabilities incurred by any of them in connection with any action taken by them to the extent pursuant to this Section 6.17 with respect to the Debt Tender Offer (other than as a result of the Company’s or Remington’s fraud or willful misconduct); provided however, that the Buyer shall not have any obligation to indemnify and hold harmless any such Person to the extent such damages are attributable to information prepared or provided by the Company or Remington for use in the Debt Tender Offer Documents that is determined to have contained a material misstatement or material omission. |
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them harmless from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to any (i) breach of representation or warranty of the Company or (ii) nonfulfillment of or failure to perform any covenant or agreement on the part of the Company contained in this Agreement (determined in all cases (other than with respect to Section 4.5) as if the limitations provided by the terms “material”, “materially”, “Material”, or any derivations thereof, were not included therein or in the Schedules related thereto). (c) Subject to this Section and the other Sections of this Article IX, the Seller Indemnifying Parties shall, severally and not jointly, indemnify the Buyer Indemnified Parties in respect of, and hold each of them harmless from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to any (i) breach by such Seller Indemnifying Party of any representation or warranty contained in Article III or (ii) nonfulfillment of or failure to perform any covenant or agreement on the part of such Seller Indemnifying Party contained in this Agreement (such Seller Indemnifying Party in clauses (i) and (ii), a “Breaching Seller Indemnifying Party”) (determined in all cases as if the limitations provided by the terms “material”, “materially”, “Material”, or any derivations thereof, were not included therein or in the Schedules related thereto). (d) Notwithstanding any provision hereof to the contrary, (i) no amounts of indemnity shall be payable in the case of a claim by a Buyer Indemnified Party under this Article IX unless and until the Buyer Indemnified Parties have suffered, incurred, sustained or become subject to Losses referred to in such Article in excess of $500,000 in the aggregate (the “Threshold Amount”), in which event the Buyer Indemnified Parties shall be entitled to recover indemnity for the full amount of such Losses; (ii) no Losses may be claimed under Section 9.1(b) or (c) unless the Losses resulting from any single claim or series of related claims arising out of the same facts, events or circumstances shall exceed $50,000; (iii) the maximum aggregate amount of Losses which may be recovered from the Seller Indemnifying Parties in respect of claims made under Section 9.1(b) or (c) is $5,000,000 (the “Cap”); and (iv) the maximum amount of Losses which may be recovered under Section 9.1(c) from a Breaching Seller Indemnifying Party shall be such Breaching Seller Indemnifying Party’s share of the Escrow Amount determined by multiplying the Escrow Amount by its Equity Percentage, or CD Fund IV Percentage, as applicable. Except as set forth in Section 9.1(d)(iv), from and after the Closing, the Buyer shall look solely to the Escrow Funds for any indemnification payments hereunder, and to the extent the Escrow Funds are insufficient or unavailable to satisfy the indemnification obligations of the Seller Indemnifying Parties under this Article IX, the Buyer shall not be entitled to pursue any other remedy against the Seller Indemnifying Parties and shall not be entitled to satisfy any liability of any Seller Indemnifying Party from any other assets of the Seller Indemnifying Parties other than the Escrow Funds. |
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| (i) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.2(a), then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that |
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| the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and the Indemnified Party will bear its own costs and expenses with respect to such separate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim. | |
| (ii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to Section 9.2(a), or if the Indemnifying Party gives such notice but fails to defend vigorously and diligently the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying |
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| Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. | |
| (iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction in accordance with Section 11.15. |
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(b) In the event any Indemnified Party should have a claim under Section 9.1 against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction in accordance with Section 11.15. |
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(c) Any actions to be taken by the Seller Indemnifying Parties in connection with this Article IX shall require the consent of each of BRS Fund II, CD Fund IV and the Sellers’ Representative. If any question, difference or dispute arises among BRS Fund II, CD Fund IV and the Seller’s Representative, BRS Fund II, CD Fund IV and the Seller’s Representative shall, in good faith, attempt to reach an amicable settlement of such question, difference or dispute. If the dispute cannot be settled through good faith negotiations within 10 Business Days from the date of written notice by any party to the other parties of the existence of such dispute, the dispute shall be submitted to arbitration panel in the city and state of New York in accordance with the rules of the American Arbitration Association. Such arbitration shall be the exclusive means of dispute resolution among the parties. 9.3 Exclusive Remedies. Except as provided for in Section 11.17, from and after Closing, the provisions of this Article IX set forth the exclusive rights and remedies of the Buyer and the Sellers to seek or obtain damages or any other remedy or relief whatsoever from any party with respect to any breach of this Agreement, provided that nothing herein shall limit in any way any of the Buyer or the Sellers’ remedies in respect of fraud by any other party in connection with the transactions contemplated hereby. 10.1 Termination. This Agreement may be terminated at any time prior to the Closing Date: (a) By the written agreement of the Buyer and the Sellers; (b) By the Sellers, on the one hand, or the Buyer, on the other hand, by written notice to the other party after 5:00 p.m. New York City time on June 28, 2007, if the transactions contemplated hereby shall not have been consummated pursuant hereto, unless such date is extended by the mutual written consent of the Sellers and the Buyer, provided, however, that the right to terminate this Agreement pursuant to this Section 10.1(b) shall not be available to any party whose breach of this Agreement results in the failure of the Closing to be consummated by such time; (c) By either the Buyer, on the one hand, or the Sellers, on the other hand, by written notice to the other party if: |
| (i) the other party has (and the terminating party shall not have) failed to perform and comply with, in all material respects, all agreements, covenants and conditions hereby required to have been performed or complied with by such party prior to the time of such |
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| termination, and such failure shall not have been cured within 30 days following notice of such failure, or | |
| (ii) any event shall occur after the date hereof that shall have made it impossible to satisfy a condition precedent to the terminating party’s obligations to consummate the transactions contemplated by this Agreement, unless the occurrence of such event shall be due to the failure of the terminating party to perform or comply with any of the agreements, covenants or conditions hereof to be performed or complied with by such party prior to the Closing. | |
| (i) the Buyer shall return to the Sellers all documents and other materials received from the Sellers, their Affiliates or their agents (including all copies of or materials developed from any such documents or other materials) |
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| relating to the transactions contemplated hereby, whether obtained before or after the execution hereof; and | |
| (ii) all confidential information received by the Buyer with respect to the Sellers and their Affiliates shall be treated in accordance with the Confidentiality Agreement which shall remain in full force and effect notwithstanding the termination of this Agreement. |
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| (i) | if to the CD Fund IV, | |
| The Xxxxxxx & Dubilier Private Equity Fund IV Limited Partnership 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx 00000 Attention: Xxxxxxx & Dubilier Associates IV Limited Partnership | ||
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| with a copy to: Debevoise & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxx Bab, Esq. |
||
| (ii) | if to BRS Fund II | |
| Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L. P. c/o Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc. 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Attention: Xxxx X. Xxxxxxxx |
||
| with a copy to: Xxxxxxxx & Xxxxx LLP Citigroup Center 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxxxx X. Xxxxxx, Esq. |
||
| (iii) | if to the Sellers’ Representative: | |
| The Xxxxxxx & Dubilier Private Equity Fund IV Limited Partnership 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx 00000 Attention: Xxxxxxx & Dubilier Associates IV Limited Partnership | |
| with a copy to: Debevoise & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxx Bab, Esq |
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| (iv) | if to the Company | |
| RACI Holding, Inc. c/o Remington Arms Company, Inc. 000 Xxxxxxxxx Xxxxx X.X. Xxx 000 Xxxxxxx, XX 00000-0000 Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx, Xx. |
||
| with a copy to: Debevoise & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxx Bab, Esq. |
||
| (v) | if to the Buyer, | |
| American Heritage Arms, LLC x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Attention: Xxxx Xxxxxxx, Senior Managing Director and Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxx Xxxxxxxxxx, Managing Director | |
| with a copy to: Milbank, Tweed, Xxxxxx & XxXxxx LLP 0 Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxx Xxxxxxx, Esq. |
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11.10 Knowledge; Interpretation. For the purposes of the representations and warranties of the Sellers and, as the case may be, the Company contained in Articles III or IV, the knowledge of the Sellers or the Company shall be deemed to consist solely of the actual knowledge of those individuals listed in Schedule 11.10 obtained in the normal course of their respective duties as officers of the Company, including in connection with the preparation and negotiation of this Agreement and the Schedules hereto, but without any further investigation or inquiry by any of them. The disclosure of any matter in the Schedules hereto shall be deemed to be a disclosure for all purposes of this Agreement to which such matter is reasonably apparent on its face, but shall expressly not be deemed to constitute an admission by the Sellers, the Company or the Buyer, or to otherwise imply, that any such matter is material for purposes of this Agreement. 11.11 Severability. If any provision, including any phrase, sentence, clause, section or subsection, of this Agreement is invalid, inoperative or unenforceable for any reason, such circumstances shall not have the effect of rendering such provisions in question invalid, inoperative or unenforceable in any other case or circumstance, or of rendering any other provision herein contained invalid, inoperative, or unenforceable to any extent whatsoever. 11.12 Headings. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. 11.13 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. 11.14 Governing Law. This Agreement and the rights and duties of the parties hereto hereunder shall be governed by and construed and interpreted in accordance with laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction 11.15 Consent to Jurisdiction, etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such |
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action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (c) Each of the parties hereto hereby irrevocably and unconditionally consents to service of process in the manner provided for notices in Section 11.5. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law. 11.16 Waiver of Punitive and Other Damages and Jury Trial. (a) THE PARTIES TO THIS AGREEMENT EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO RECOVER PUNITIVE, EXEMPLARY, LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY ARBITRATION, LAWSUIT, LITIGATION OR PROCEEDING ARISING OUT OF OR RESULTING FROM ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. (b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH 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 TRANSACTIONS CONTEMPLATED HEREBY. (c) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF THE FOREGOING WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.16. |
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written. |
| AMERICAN HERITAGE ARMS, LLC | |||
| By | /s/ Xxxxxx Xxxxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxxxx | ||
| Title: | Executive Vice President | ||
| RACI HOLDING, INC. | |||
| By | /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||
| Name: |
Xxxxxxx X. Xxxxxxx, Xx. | ||
| Title: | SVP-CFO, Treasurer & Corporate Secretary | ||
| THE XXXXXXX & DUBILIER PRIVATE EQUITY FUND IV LIMITED PARTNERSHIP | |||
| By: | /s/ Xxxxxx X. Xxxxx | ||
| Name: | Xxxxxx X. Xxxxx | ||
| Title: | General Partner | ||
| Number of Shares: 28,717 | |||
| BRUCKMANN, XXXXXX, XXXXXXXX & CO. II, L.P. By: BRS Partners II LLC | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | ||
| Title: | Managing Director | ||
| Number of Shares: 135,954 | |||
| XXXX XXXXX | |||
| By: | /s/ Xxxx Xxxxx | ||
| Number of Shares: 2 | |||
| Number of Deferred Shares: 20 | |||
| XXXX XXXXXX | |||
| By: | /s/ Xxxx Xxxxxx | ||
| Number of Shares: 6 | |||
| XXXXXX X. XXXXX XX. | |||
| By: | /s/ Xxxxxx X. Xxxxx Xx. | ||
| Number of Shares: 49 | |||
| Number of Deferred Shares: 300 | |||
| B. XXXXXXX XXXX | |||
| By: | /s/ B. Xxxxxxx Xxxx | ||
| Number of Shares: 4,627 | |||
| B. XXXXXXX XXXX FAMILY 2003 TRUST | |||
| By: | /s/ Xxxx Xxxxx | ||
| Name: | Xxxx Xxxxx | ||
| Title: | Trustee | ||
| Number of Shares: 4,627 | |||
| B. XXXXXXX XXXX XXX TO B. XXXXXXX XXXX TRUST UAD 8/26/02 | |||
| By: | /s/ B. Xxxxxxx Xxxx | ||
| Name: | |||
| Title: | |||
| Number of Shares: 2,269 | |||
| XXXXX X. XXXXX | |||
| By: | /s/ Xxxxx X. Xxxxx | ||
| Number of Shares: 900 | |||
| Number of Option Shares: 226 | |||
| XXXXXXX XXXX | |||
| By: | /s/ Xxxxxxx Xxxx | ||
| Number of Shares: 20 | |||
| Number of Deferred Shares: 195 | |||
| Number of Option Shares: 649 | |||
| XXXXXX XXXXX | |||
| By: | /s/ Xxxxxx Xxxxx | ||
| Number of Deferred Shares: 37 | |||
| Number of Option Shares: 37 | |||
| FANO & CO. | |||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: Xxxx Xxxxxxxxx | |||
| Title: Vice President | |||
| Number of Shares: 3,491 | |||
| XXXXXX XXXXXX | |||
| By: | /s/ Xxxxxx Xxxxxx | ||
| Number of Shares: 6 | |||
| Number of Deferred Shares: 23 | |||
| XXXXXXX XXXXXX | |||
| By: | /s/ Xxxxxxx Xxxxxx | ||
| Number of Shares: 3 | |||
| XXXXXX XXXXXXXXXXX | |||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | ||
| Number of Option Shares: 226 | |||
| H. XXXXXX XXXXXXXXXXX REVOCABLE TRUST OF 1992 | |||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | ||
| Name: | |||
| Title: | |||
| Number of Shares: 229 | |||
| XXXXXXX X. XXXXXX, SPECIAL TRUSTEE UNDER THE XXXXXXXXX X. XXXXXX, XX. AND XXXXXXX X. XXXXXX TRUST AGREEMENT, DATED MARCH 8, 1998, AS AMENDED. |
|||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | Special Trustee | ||
| Number of Shares: 158 | |||
| XXXXXXX X. XXXX | |||
| By: | /s/ Xxxxxxx X. Xxxx | ||
| Number of Shares: 9,255 | |||
| Number of Option Shares: 226 | |||
| XXXXX X. XXXXX | |||
| By: | /s/ Xxxxx X. Xxxxx | ||
| Number of Shares: 227 | |||
| XXX XXXXXXX | |||
| By: | /s/ Xxx Xxxxxxx | ||
| Number of Shares: 274 | |||
| XXXX XXXXXXXX | |||
| By: | /s/ Xxxx Xxxxxxxx | ||
| Number of Shares: 8 | |||
| Number of Deferred Shares: 10 | |||
| XXXX X. XXXXX, XX. | |||
| By: | /s/ Xxxx X. Xxxxx, Xx. | ||
| Number of Deferred Shares: 195 | |||
| Number of Option Shares: 1,103 | |||
| XXXXX XXXXX | |||
| By: | /s/ Xxxxxxx Xxxxxxxx P/A | ||
| Number of Shares: 177 | |||
| LANDER VALUE FUND, L.P. | |||
| By: | /s/ Xxxx Xxxxx | ||
| Name: | Xxxx Xxxxx | ||
| Title: | Managing PTR, LVF Associates, LP | ||
| Number of Shares: 1,352 | |||
| XXXX X. XXXXXXX FAMILY 2003 TRUST | |||
| By: | /s/ Xxxx X. Xxxxxxx | ||
| Name: | |||
| Title: | |||
| Number of Shares: 578 | |||
| XXXX X. XXXXXXX, XX. | |||
| By: | /s/ Xxxx X. Xxxxxxx, Xx. | ||
| Number of Shares: 2,879 | |||
| Number of Deferred Shares: 256 | |||
| Number of Option Shares: 454 | |||
| XXXXXXXX XXXXXX | |||
| By: | /s/ Xxxxxxx Xxxxxxxx P/A | ||
| Number of Shares: 40 | |||
| XXXX X. LITTLE | |||
| By: | /s/ Xxxx X. Little | ||
| Number of Shares: 198 | |||
| Number of Deferred Shares: 1,000 | |||
| Number of Option Shares: 2,270 | |||
| XXXXXXX X. XXXXXXX | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | ||
| Number of Shares: 2,314 | |||
| XXXXXXX X. XXXXXXXX | |||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | ||
| Number of Shares: 2,314 | |||
| XXXX XXXXX XX. | |||
| By: | /s/ Xxxx Xxxxx Xx. | ||
| Number of Shares: 8 | |||
| Number of Deferred Shares: 39 | |||
| XXXX X. XXXXX | |||
| By: | /s/ Xxxx X. Xxxxx | ||
| Number of Shares: 256 | |||
| Number of Deferred Shares: 265 | |||
| Number of Option Shares: 680 | |||
| XXXXXXX X. XXXXXXXXX | |||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | ||
| Number of Option Shares: 226 | |||
| XXXXXXX AND XXXXX XXXXXXXXX LIVING TRUST | |||
| By: | /s/ Xxxxxxx Xxxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxxx | ||
| Title: | |||
| Number of Shares: 213 | |||
| XXXXXXX XXXXXXXX | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Number of Shares: 63 | |||
| XXXXXXX X. XXXXXXX | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | ||
| Number of Shares: 213 | |||
| Number of Option Shares: 226 | |||
| XXXXXXX XXXX | |||
| By: | /s/ Xxxxxxx Xxxx | ||
| Number of Shares: 1 | |||
| Number of Deferred Shares: 10 | |||
| XXXXXX X. XXXXX | |||
| By: | /s/ Xxxxxx X. Xxxxx | ||
| Number of Shares: 9 | |||
| Number of Deferred Shares: 18 | |||
| XXXXX XXXXX | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Number of Shares: 13 | |||
| Number of Deferred Shares: 90 | |||
| XXXXXX X. XXXXXXX | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | ||
| Number of Shares: 922 | |||
| XXXXXXX X. XXXXXXX, XX. AND XXXXXXXXX XXXXX XXXXXXX – 1996 FAMILY TRUST |
|||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | ||
| Title: | General Partner/Trustee | ||
| Number of Shares: 197 | |||
| XXXXXXX X. XXXXXXX, XX | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx | ||
| Number of Option Shares: 680 | |||
| THE B. XXXXXXX XXXX FAMILY 1993 TRUST | |||
| By: | /s/ Xxxx Xxxxx | ||
| Name: | Xxxx Xxxxx | ||
| Title: | Trustee | ||
| Number of Shares: 2,270 | |||
| XXXXXX X. XXXXXXX | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | ||
| Number of Shares: 369 | |||
| Number of Deferred Shares: 3,393 | |||
| Number of Option Shares: 3,632 | |||
