Exhibit 10.1
SEPARATION AGREEMENT, dated as of July 31, 2001 (the "Agreement"), by and
among Remington Arms Company, Inc., a Delaware corporation (the "Company"), RACI
Holding, Inc., a Delaware corporation and parent of the Company ("Holding"), and
Xxxxxx X. Xxxxxxx ("Executive").
W I T N E S S E T H :
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WHEREAS, the Company and Executive entered into an Employment Agreement,
dated as of September 1, 1998 (the "Employment Agreement");
WHEREAS, pursuant to the Employment Agreement, Executive is currently
employed as Vice President, General Manager - Worldwide Sales;
WHEREAS, Executive has previously been granted options (collectively, the
"Options") to purchase a total of 3,860 shares of class A common stock of
Holding pursuant to various Management Stock Option Agreements between Holding
and Executive (the "Option Agreements");
WHEREAS, Executive has previously been granted a total of 2,046 deferred
shares of the common stock of Holding (collectively, "Deferred Shares") pursuant
to various Matching Deferred Share Award Agreements and Stock Purchase Right
Deferred Share Award Agreements between Holding and Executive (collectively,
"Deferred Share Agreements");
WHEREAS, Executive and the Company have determined that it would be in each
of their respective best interests for Executive's employment with the Company
to terminate;
WHEREAS, pursuant to the Employment Agreement, Executive has agreed to be
bound by certain covenants and restrictions concerning noncompetition,
nondisclosure and nonsolicitation following any termination of his employment;
WHEREAS, Holding, the Company and Executive wish to agree upon the
consequences of the termination Executive's employment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein and for other good and valuable consideration,
Holding, the Company and Executive hereby agree as follows:
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1. Certain Definitions. For purposes of this Agreement, all capitalized
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terms used herein without definition shall have the respective meanings assigned
to such terms in the Employment Agreement.
2. Termination of Employment. Effective as of July 31, 2001 (the
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"Termination Date"), Executive's employment with the Company is hereby
terminated and Executive hereby resigns from his position as Vice President,
General Manager - Worldwide Sales and from each other position he then holds
with the Company or any of its direct or indirect subsidiaries or affiliates.
Such termination of Executive's employment and resignation is hereinafter
referred to as "Executive's Termination".
3. Consequences of Executive's Termination Under Certain Agreements.
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(a) In General. Holding, the Company and Executive each hereby
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acknowledges and agrees that, for purposes of the Employment Agreement, the
Option Agreements and the Deferred Share Agreements, Executive's Termination is
and will be treated solely as a termination by the Company Without Cause.
(b) Employment Agreement. Effective on the Termination Date, the
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Employment Period shall expire and, pursuant to Section 7(f)(i) of the
Employment Agreement and in consideration of the Executive's execution of this
Agreement and the General Release of All Claims attached hereto as Exhibit A
(the "Release"), the Company shall pay to the Executive (i) continued payment,
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following the Termination Date, of installments of the Base Salary for the
period commencing on the Termination Date and ending on the first anniversary of
the Termination Date, such continued payments to be made in accordance with the
Company's regular payroll practices, (ii) a lump sum payment of Two Hundred
Thousand and 00/100 Dollars ($200,000.00), payable on the eighth day after the
Termination Date, (iii) at the time annual bonuses for services rendered in
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calendar year 2001 are paid to senior executives of the Company, payment of an
amount equal to the product of (x) the annual incentive compensation bonus that
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would have been payable to Executive pursuant to the terms of the Employment
Agreement if (A) Executive's employment with the Company had continued until
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December 31, 2001 and (B) the Executive had achieved (but not exceeded) the
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target performance objectives applicable under the Employment Agreement for
calendar year 2001, multiplied by (y) a fraction, the numerator of which is
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equal to the number of days in the period from January 1, 2001 to the
Termination Date and the denominator of which is 365, and (iv) payment of any
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benefits payable to Executive under any applicable employee benefit plan, policy
or practice of the Company in which Executive was a participant on or prior to
the Termination Date, such payments to be made in accordance with the generally
applicable provisions of such plans, policies and practices. Notwithstanding
the foregoing, Executive acknowledges that in lieu of offsetting the amounts
payable pursuant to this paragraph, Executive waives any rights he may have
under any plan, policy or practice providing for severance or termination
benefits or annual incentive compensation.
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Executive understands and agrees that his receipt of the payments set forth
in this Section 3(b) are conditioned on Executive's execution and delivery of
the Release, and performance of all of his duties hereunder and in the event of
his material breach of any of his duties and obligations, his failure to execute
and deliver the Release by the end of the 21/st/ day after the execution and
delivery of this Agreement or his revocation of the Release, the Company shall
have the right to cease any further payments under this Section 3(b).
Effective as of the Termination Date, the Employment Agreement will
terminate in its entirety without any further liability or obligation on the
part of the Company or any of its subsidiaries or affiliates or Executive
thereunder, except that the provisions of Sections 8, 9, 10, 11, 12, 13, 14 and
17, all of which provisions are incorporated herein by reference, shall survive
Executive's Termination and thereafter shall remain in full force and effect.
Notwithstanding the foregoing, the provisions of Section 19(h) of the Employment
Agreement relating to the survival of Section 7(f) of the Employment Agreement
will terminate effective as of the Termination Date and will not be incorporated
herein by reference.
(c) Options. Holding, the Company and Executive each hereby acknowledges
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and agrees that as of the Termination Date, (i) Executive holds an aggregate of
3,860 Options, (ii) 3,155 Options are vested or exercisable (the "Vested
Options"), and (iii) 705 Options are not and will not become vested or
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exercisable (the "Unvested Options"). Pursuant to the terms of the Option
Agreements, all of the Unvested Options will be canceled and forfeited on and as
of the Termination Date without the payment of any consideration or amount in
respect thereof. Holding, the Company and Executive agree that, notwithstanding
any provisions of the Option Agreements to the contrary, the Vested Options will
be canceled and forfeited on and as of the Termination Date.
(d) Purchase of Deferred Shares. Pursuant to the terms of the Deferred
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Share Agreements, Executive is entitled to one share of common stock of Holding
in settlement of each share of Deferred Shares that he holds as of the
Termination Date. Holding, the Company and Executive each hereby acknowledges
and agrees that as of the Termination Date, Executive is entitled to 2,046
shares of common stock of Holding in settlement of each share of Deferred Shares
that he holds. The parties agree that, in lieu of shares of common stock of
Holding, Holding will pay to Executive $180 for each Deferred Share that
Executive holds as of the Termination Date. Contemporaneously with the
execution and delivery of this Agreement, Executive and Holding agree to execute
a Deferred Share Repurchase and Option Cancellation Agreement with respect to
the purchase of the Deferred Shares.
4. Executive's Release of Claims. In consideration of the payments
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provided for in Section 3(b) above and in accordance with Section 7(f) of the
Employment Agreement, Executive hereby agrees to execute and deliver to the
Company on the Termination Date the Release.
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5. Entire Agreement; Related Documents. This Agreement (including Exhibit
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A hereto) together with the Deferred Share Repurchase and Option Cancellation
Agreement constitute the entire agreement among the parties hereto with respect
to the subject matter hereof. All prior correspondence and proposals (including
summaries of proposed terms) and all prior promises, representations,
understandings, arrangements and agreements relating to such subject matter
(including, but not limited to, the Employment Agreement, the Option Agreements,
the Deferred Share Agreements and any other agreements made to or with Executive
by any other person or entity) are merged herein and superseded hereby.
6. Miscellaneous.
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(a) Binding Effect; Assignment. This Agreement shall be binding on and
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inure to the benefit of Holding, the Company and their respective successors and
permitted assigns. This Agreement shall also be binding on and inure to the
benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other parties hereto. Each of Holding
and the Company may effect such an assignment without prior written approval of
Executive upon the transfer of all or substantially all of its business and/or
assets (whether by purchase, merger, consolidation or otherwise).
(b) Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of Delaware.
(c) Taxes. The Company may withhold from any payments made under this
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Agreement all federal, state, city or other applicable taxes as shall be
required by law.
(d) Amendments. No provision of this Agreement may be modified, waived or
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discharged unless such modification, waiver or discharge is approved by the
Board of Directors of the Company and is agreed to in writing by Executive. No
waiver by any party hereto at any time of any breach by any other party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
waiver of any provision of this Agreement shall be implied from any course of
dealing between or among the parties hereto or from any failure by any party
hereto to assert its rights hereunder on any occasion or series of occasions.
(e) Severability. In the event that any one or more of the provisions of
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this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
(f) Notices. Any notice or other communication required or permitted to
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be delivered under this Agreement shall be (i) in writing, (ii) delivered
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personally, by courier service or by certified or registered mail, first-class
postage prepaid and return
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receipt requested, (iii) deemed to have been received on the date of delivery or
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on the third business day after the mailing thereof, provided that the party
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giving such notice or communication shall have attempted to telephone the party
or parties to which notice is being given during regular business hours on or
before the day such notice or communication is being sent, to advise such party
or parties that such notice is being sent, and (iv) addressed as follows (or to
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such other address as the party entitled to notice shall hereafter designate in
accordance with the terms hereof):
(A) if to the Company, to it at:
c/o Remington Arms Company, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
(B) if to Holding, to it at:
RACI Holding, Inc.
C/o Remington Arms Company, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
(B) if to Executive, to him at the address set forth on the signature
page hereof.
Copies of any notices or other communications given under this Agreement shall
also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
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and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
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(g) Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original and all of which together shall constitute one
and the same instrument.
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(h) Headings. The section and other headings contained in this Agreement
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are for the convenience of the parties only and are not intended to be a part
hereof or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, the Company and Holding have duly executed this
Agreement by their authorized representatives and Executive has hereunto set his
hand, in each case effective as of the date first above written.
REMINGTON ARMS COMPANY, INC.
By:
Name:__________________________
Title:
RACI HOLDING, INC.
By:
Name:___________________________
Title:
__________________________________
Xxxxxx X. Xxxxxxx
Address:
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The undersigned hereby consents to the terms of Section 3(c) above.
XXXXXXX & DUBILIER PRIVATE
EQUITY FUND IV LIMITED
PARTNERSHIP
By Xxxxxxx & Dubilier Associates IV Limited
Partnership, its General Partner
By: ______________________________
Xxxxxxx Xxxxxxx
Title:_________________________
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EXHIBIT A
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GENERAL RELEASE OF ALL CLAIMS
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WHEREAS, I, Xxxxxx Xxxxxxx, was terminated from my employment with
Remington Arms Company, Inc. and each and every subsidiary and affiliate thereof
(hereinafter the "Company" as defined below) on July 31, 2001; and
WHEREAS, Company has agreed to provide me with certain post-employment
benefits to which I would not have otherwise been entitled; and
WHEREAS, I, Xxxxxx Xxxxxxx, acknowledge that I have been provided all
monies owed through the date I sign this Agreement and that the Company has
satisfied all obligations to me arising out of or relating to my employment with
the Company or separation from such employment through the date I sign this
Agreement; and
NOW, THEREFORE, in consideration of the promises set forth herein, I,
Xxxxxx Xxxxxxx, on behalf of myself, my agents, representatives, administrators,
receivers, trustees, executives, successors, heirs, designees, legal
representatives, assignees and attorneys hereby irrevocably and forever release
and discharge Company (defined herein to include Remington Arms Company, Inc.,
and all affiliated or related companies, parents, divisions, or subsidiaries,
whether said entities are incorporated, unincorporated associations or
partnerships and their owners, shareholders, officers, directors, agents,
attorneys, partners, employees, successors and assigns) from any and all claims,
demands, actions or causes of action, of any kind or nature, past or present,
known or unknown, arising out of, or in any way connected with, my employment or
my separation from employment, including but not limited to any claims or
demands for the following: wrongful discharge; breach of an implied or
expressed employment contract; negligent or intentional infliction of emotional
stress; defamation; fraud; discrimination and/or harassment based on age, sex,
race, religion, national origin, sexual orientation, physical or mental
disability, or medical condition; violation of any section of the AIDS
Confidentiality Act, the Equal Employment for Persons with Disabilities Code,
the Age Discrimination Act, Title VII of the Civil Rights Act of 1964, the
federal Age Discrimination in Employment Act, the Employee Retirement Income
Security Act of 1974, or any other federal, state or local laws or regulations;
unpaid wages, salary, overtime compensation, bonuses, commissions, or other
compensation of any sort; for damages of any nature, including compensatory,
general, special or punitive; or for costs, fees or other expenses, including
attorneys' fees, incurred regarding these matters.
FURTHER, in consideration of said promises and as a further consideration
for this Separation Agreement, I, Xxxxxx Xxxxxxx, understand, agree, represent
and warrant as follows:
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1. That this is a full and final release applying to all unknown and
unanticipated injuries, claims, or damages arising out of said employment, as
well as to those now known or disclosed and that I, Xxxxxx Xxxxxxx, voluntarily
waive all rights or benefits which I now have, with the express intention of
releasing and extinguishing unknown or unsuspected obligations, and I warrant
that I am currently unaware of any claim(s), rights(s), demands(s), or debt(s),
actions(s), obligations(s), liability or causes(s) of action whatsoever against
the Company which I have not released pursuant to this Agreement.
2. That I, Xxxxxx Xxxxxxx, recognize that the Company asserts that it
shall suffer great embarrassment and substantial economic damage from any
publicity or any oral or written publication whatsoever relating to the
circumstances of my termination of employment and this settlement, including but
not limited to: (a) the fact of this Agreement; (b) the specific amount or
general range of the consideration set forth in the Agreement; (c) the
negotiations for this Agreement; (d) any terms of this Agreement; and (e) any
facts regarding the period of employment with Company, except dates and
compensation, (hereinafter collectively referred to as the "Confidential
Information"). Accordingly, I, Xxxxxx Xxxxxxx, warrant and represent that
neither I nor anyone acting on my behalf (including without limitation my tax or
financial advisors) has initiated or caused to be initiated any publicity or any
oral or written communication whatsoever, whether initiated or responsive,
concerning the Confidential Information; and shall forever hold confidential and
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not make public to anyone, whether by oral or written communications or
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otherwise said Confidential Information except only: (i) to the extent as may
be absolutely necessary to accomplish the filing of my income tax returns; (ii)
to the extent as may be absolutely necessary to enforce the terms of this
Agreement; or (iii) to the extent as may be specifically compelled by judicial
process.
3. That, I, Xxxxxx Xxxxxxx, have had the opportunity to consult with a
representative of my own choosing with respect to this Release; that I have read
this Release; that I am fully aware of its contents and of its legal effect; and
I freely and voluntarily entered into it.
4. That, I, Xxxxxx Xxxxxxx, will not file or bring any claims, charges,
complaints, or other actions against Company arising out of or based upon the
circumstances of my employment or my separation from employment, except as
otherwise permitted by law.
5. That, I, Xxxxxx Xxxxxxx, warrant that except as expressly set forth
herein, no representations of any kind or character have been made to me by the
Company or any of the Company's agents, representatives, employees or attorneys
(or anyone else purporting to act in any such capacities) to induce me to
execute this Separation Agreement and General Release of All Claims.
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6. That, I, Xxxxxx Xxxxxxx, acknowledge and agree that this Separation
Agreement and General Release of All Claims and the consideration given
hereunder is not to be construed as an admission by the Company or as an
admission of any act or fact whatsoever.
7. The consideration set forth in the Agreement exceeds any amount and/or
consideration to which I would otherwise be entitled under the Company's
standard operating policies, practices, or as required by law. All amounts to
which I would be entitled under the Company's policies, practices and/or as
required by law have been tendered to me and are hereby acknowledged. Therefore,
said consideration is not paid as wages or other compensation due, but is paid
solely in consideration of this Release and the Confidentiality provisions set
forth herein.
8. Compliance With Older Workers Benefit Protection Act.
In compliance with the Older Workers Benefit Protection Act (P.L. 101-433),
the Company and Xxxxxx Xxxxxxx do hereby acknowledge as follows:
(a) That, I, Xxxxxx Xxxxxxx, acknowledge that this Agreement specifically
applies to any rights or claims I may have against the Company or any party
released herein under the federal Age Discrimination in Employment Act of 1967,
as amended;
(b) The Agreement does not purport to waive rights or claims that may arise
from acts or events occurring after the date that this Agreement is executed by
the parties;
(c) That, I, Xxxxxx Xxxxxxx, acknowledge that the consideration provided
for in this Agreement and the provisions of this paragraph are in addition to
that to which I am already entitled;
(d) That, I, Xxxxxx Xxxxxxx, understand that this Agreement shall be
revocable for a seven (7) day period following execution of this Agreement by
me. Accordingly, this Agreement shall not become effective or enforceable until
the expiration of this seven (7) day revocation period.
(e) That, I, Xxxxxx Xxxxxxx, acknowledge that I have been advised of my
right to consult with an attorney, and have in fact consulted with an attorney,
prior to signing this Agreement and have been given a period of twenty-one (21)
days within which to consider whether to sign this Agreement.
9. This release is made in the State of New York and shall be interpreted
under the laws of said State. Its language shall be construed as a whole,
according to its fair meaning and not strictly for or against either party.
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10. In the event that it shall be necessary for any party hereto to
institute legal action to enforce any of the terms and conditions or provisions
contained herein, or for any breach thereof, the prevailing party in such action
shall be entitled to costs and reasonable attorneys' fees.
PLEASE READ CAREFULLY, THIS RELEASE INCLUDES A WAIVER AND A SETTLEMENT OF
ALL KNOWN AND UNKNOWN CLAIMS.
DATED:____________, 2001 XXXXXX XXXXXXX
__________________________________
Address:__________________________
__________________________
DATED:____________, 2001 REMINGTON ARMS COMPANY, INC.
By:_______________________________
Title:____________________________
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