EXHIBIT 10.32
LOANOUT AGREEMENT
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This LOANOUT AGREEMENT is dated as of December 16, 1997 (the
"Agreement"), by and among RACI Holding, Inc., a Delaware corporation
("Holding"), Remington Arms Company, Inc., a Delaware corporation and wholly-
owned subsidiary of Holding (the "Company"), and Xxxxxxx, Dubilier & Rice, Inc.,
a Delaware corporation ("CD&R").
W I T N E S S E T H:
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WHEREAS, Holding, the Company and CD&R are parties to a consulting
agreement, dated as of December 1, 1993 (the "Consulting Agreement"), among
Holding, the Company and CD&R, and an indemnification agreement, dated as of
November 30, 1993 (the "Indemnification Agreement"), among Holding, the Company,
CD&R and The Xxxxxxx & Dubilier Private Equity Fund IV Limited Partnership, a
Connecticut limited partnership (the "C&D Fund");
WHEREAS, the Company and Holding desire to obtain the services of Xx.
Xxxx X. Xxxxxxx, Xx. ("Xxxxxxx"), an employee of CD&R, to perform the functions
of Chairman and Chief Executive Officer of the Company and Holding, and CD&R is
willing to make such services available to the Company and Holding upon and
subject to the terms and conditions hereof; and
WHEREAS, this Agreement has been approved by the Boards of Directors
of the Company and Holding, including a majority of the disinterested directors
of each of the Company and Holding;
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, the parties hereto hereby agree as follows:
1. Services, etc.
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CD&R shall make the services of Xxxxxxx available to the Company and
Holding, and the Company and Holding shall make use of the services of Xxxxxxx
to serve as Chairman and Chief Executive Officer of each of the Company and
Holding commencing and effective as of December 16, 1997, until the expiration
of the Term (as defined in Section 2 hereof). Xxxxxxx shall be available to
render such services on a part-time basis mutually agreeable to the Company,
Holding, CD&R and Xxxxxxx. Without limiting the foregoing, Xxxxxxx will
continue to serve as an employee of CD&R and may serve as an officer or director
of CD&R or other corporations or entities and devote such time to performing
such services as Xxxxxxx, in his sole discretion, shall deem appropriate. The
services of Xxxxxxx to be made available to the Company, Holding and its
subsidiaries hereunder shall be deemed part of the services provided by CD&R
pursuant to the Consulting Agreement. No separate or additional consideration
shall be payable hereunder for the services of Xxxxxxx, beyond that payable
under the Consulting Agreement.
2. Term.
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(a) This Agreement shall be effective as of December 16, 1997. The
term of this Agreement (the "Term") shall commence on December 16, 1997 and
shall terminate on the earliest to occur of (i) the termination of the
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Consulting Agreement, (ii) the date that is ten (10) business days following
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delivery of written notice of such termination by any party hereto to the other
parties hereto, (iii) the election of a successor Chief Executive Officer of the
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Company or of Holding by the Board of Directors of the Company or of Holding, as
applicable, in accordance with its by-laws, and (iv) Xxxxxxx'x death, permanent
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disability or resignation from his employment with CD&R.
(b) The expiration of the Term shall not affect the continuing
effectiveness of the Consulting Agreement or the Indemnification Agreement, each
of which shall continue to be in full force and effect and enforceable in
accordance with their respective terms. Without limiting the foregoing, each of
the Company and Holding shall continue to, and to be obligated to, pay and
reimburse all fees, expenses and other amounts as and when due under the
Consulting Agreement and the Indemnification Agreement and perform all their
other obligations thereunder.
3. Indemnification.
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All performance by, and all actions or omissions of, CD&R or Xxxxxxx
under or in respect of this Agreement shall be deemed to be pursuant to the
Consulting Agreement, and each of CD&R and Xxxxxxx shall be entitled to the
benefits of the indemnification and other provisions of the Consulting Agreement
and the Indemnification Agreement.
4. Independent Contractor Status.
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Each of CD&R, the Company and Holding agree that the furnishing of
Xxxxxxx'x services hereunder by CD&R is solely as an independent contractor,
with CD&R retaining control over and responsibility for its own operations and
personnel, including Xxxxxxx. Neither CD&R nor any of its directors, officers,
employees or agents (including Xxxxxxx) shall, solely by virtue of this
Agreement or the arrangements hereunder, be considered employees, principals,
partners, co-venturers or agents of the Company or Holding.
5. Notices.
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Any notice or other communication required or permitted to be given or
made under this Agreement by one party to the other parties shall be in writing
and shall be deemed to have been duly given and to be effective (i) on the date
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of delivery if delivered personally or (ii) when sent if sent by prepaid
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telegram, or mailed first-class, postage prepaid, by registered or certified
mail or confirmed facsimile transmission, as follows (or to such other address
as shall be given in writing by one party to the other parties in accordance
herewith):
If to the Company to:
Remington Arms Company, Inc.
000 Xxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, X.X. 00000-0000
Attn: Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Holding, to it care of
the Company at the address set
forth above.
If to CD&R to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6. General.
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(a) Entire Agreement. This Agreement together with the Consulting
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Agreement and the Indemnification Agreement (i) contain the complete and entire
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understanding and agreement of CD&R, Holding and the Company with respect to the
subject matter hereof, and (ii) supersede all prior and contemporaneous
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understandings, conditions and agreements, oral or written, express or implied,
in respect of the subject matter hereof, including but not limited to in respect
of the furnishing of the services of Xxxxxxx in connection with the subject
matter hereof. There are no representations or warranties of Xxxxxxx or CD&R in
connection with this Agreement or the services to be made available hereunder,
except as expressly made and contained in this Agreement.
(b) Headings. The headings contained in this Agreement are for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
(c) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
(d) Binding Effect; Assignment. This Agreement shall be binding upon
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and inure to the benefit of the parties to this Agreement and their respective
successors and assigns, provided that none of CD&R, the Company or Holding may
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assign any of its rights or obligations under this Agreement without the express
written consent of the other parties hereto.
(e) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
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MADE UNDER, AND IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. EACH OF THE COMPANY, HOLDING AND CD&R HEREBY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN XXX
XXXXX, XXXX XXX XXXXXX XX XXX XXXX SOLELY IN RESPECT OF THE INTERPRETATION AND
ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND THE PARTIES HERETO HEREBY
IRREVOCABLY AGREE THAT (i) THE SOLE AND EXCLUSIVE APPROPRIATE VENUE FOR ANY
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ACTION, SUIT OR PROCEEDING RELATING TO SUCH INTERPRETATION AND ENFORCEMENT SHALL
BE IN SUCH A COURT, (ii) ALL CLAIMS WITH RESPECT TO SUCH PROVISIONS SHALL BE
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HEARD AND DETERMINED EXCLUSIVELY IN SUCH A COURT, (iii) ANY SUCH COURT SHALL
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HAVE EXCLUSIVE JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT
MATTER OF ANY DISPUTE RELATING TO SUCH PROVISIONS AND (iv) EACH HEREBY WAIVES,
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AND AGREES NOT TO ASSERT, ANY AND ALL OBJECTIONS AND DEFENSES BASED ON FORUM,
VENUE OR PERSONAL OR SUBJECT MATTER JURISDICTION AS THEY MAY RELATE TO SUCH AN
ACTION, SUIT OR PROCEEDING BEFORE SUCH A COURT IN ACCORDANCE WITH THE PROVISIONS
OF THIS SECTION 6(e), PROVIDED THAT ENFORCEMENT OF A JUDGMENT RENDERED BY SUCH A
COURT MAY BE SOUGHT IN ANY COURT OF COMPETENT JURISDICTION FOR THE ENFORCEMENT
THEREOF. EACH OF THE COMPANY, HOLDING AND CD&R HEREBY CONSENT TO AND GRANT ANY
SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY
SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION
WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 5, OR IN
SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT
SERVICE THEREOF.
(f) Waiver of Jury Trial. Each party hereto acknowledges and agrees
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that any controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore it hereby irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
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has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) it understands
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and has considered the implications of this waiver, (iii) it makes this waiver
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voluntarily, and (iv) it has been induced to enter into this Agreement by, among
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other things, the mutual waivers and certifications contained in this Section
6(f).
(g) Amendment; Waivers. No amendment, modification, supplement or
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discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought (and in the case of Holding and the Company, approved by resolution of
the Board of Directors of Holding or the Company, as the case may be). Any such
waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any party hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any party, on one or more
occasions, to enforce any of the provisions of this Agreement or to exercise any
right or privilege hereunder, shall be construed as a waiver of any other breach
or default of a similar nature, or as a waiver of any of such provisions, rights
or privileges hereunder.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity or
otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
RACI HOLDING, INC.
By /s/ Xxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Operating Officer
REMINGTON ARMS COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Operating Officer
XXXXXXX, DUBILIER & RICE, INC.
By /s/ Xxxxxx X. Xxxx, III
_________________________________
Name: Xxxxxx X. Xxxx, III
Title: Chairman and Chief Executive Officer
