Exhibit 10.51
RETIREMENT AGREEMENT, dated as of March 31, 2003 (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. Xxxxxx ("Executive").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company and Executive entered into an Employment
Agreement, dated as of June 30, 1998 (the "Employment Agreement");
WHEREAS, pursuant to the Employment Agreement, Executive is currently
employed as Vice President, Human Resources;
WHEREAS, Executive holds 336 shares of the common stock of Holding
(collectively, "Shares") pursuant to several Management Stock Subscription
Agreements between Holding and Executive (collectively, the "Stock Subscription
Agreements");
WHEREAS, Executive has expressed his intention to retire from active
employment with the Company;
WHEREAS, Executive has provided loyal and valuable service to the
Company and the Company recognizes Executive's significant contribution to the
Company and its shareholders;
WHEREAS, the Company believes that it is in its best interest to retain
consulting services of Executive following Executive's retirement from active
employment on the terms and conditions contained herein;
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;
and
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:
1. Certain Definitions. For purposes of this Agreement, all capitalized
terms used herein without definition shall have the respective meanings assigned
to such terms in the Employment Agreement.
2. Retirement from Employment. Effective as of March 31, 2003 (the
"Retirement Date"), Executive's active employment with the Company is hereby
terminated and Executive hereby resigns from his position as Vice President,
Human Resources 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 active employment and resignation is hereinafter referred to as
"Executive's Retirement".
3. Consequences of Executive's Retirement Under Certain Agreements.
(a) In General. Holding, the Company and Executive each hereby
acknowledges and agrees that, for purposes of the Employment Agreement and the
Stock Subscription Agreements, Executive's Retirement is and will be treated
solely as a termination by the Company without Cause. For all other purposes,
Executive's Retirement shall be treated as retirement.
(b) Employment Agreement. Effective on the Retirement Date, the
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,
following the Retirement Date, of installments of the Base Salary for the period
commencing on the Retirement Date and ending on the first anniversary of the
Retirement Date, such continued payments to be made in accordance with the
Company's regular payroll practices, (ii) the Continued Benefits, (iii) at the
time annual bonuses for services rendered in calendar year 2003 are paid to
senior executives of the Company, payment of an amount equal to the product of
(x) the annual incentive compensation bonus that 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 December 31, 2003 and (B) the
Executive had achieved (but not exceeded) the target performance objectives
applicable under the Employment Agreement for calendar year 2003, multiplied by
(y) a fraction, the numerator of which is equal to the number of days in the
period from January 1, 2003 to the Retirement Date and the denominator of which
is 365, and (iv) payment of any 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 Retirement Date, such payments to
be made in accordance with the generally applicable provisions of such plans,
policies and practices. Executive shall also be entitled to continued
participation in any retirement plans or programs in which he was a participant
on or prior to the Retirement Date on the terms applicable to retired employees
and as such plans and programs may be amended from time to time. 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 21st 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 Retirement 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 Retirement 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 Retirement Date and will not be incorporated
herein by reference.
(c) Purchase of Shares. Holding, the Company and Executive each hereby
acknowledges and agrees that as of the Retirement Date, Executive holds 336
Shares and that Holding will pay to Executive $220.31 for each such Share.
Contemporaneously with the execution and delivery of this Agreement, Executive
and Holding agree to execute a Share Repurchase Agreement with respect to the
purchase of the Shares.
4. Executive's Release of Claims. In consideration of the payments
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 Retirement Date the Release.
5. Consulting Services. (a) For the one-year period ending on the first
anniversary of the date hereof (the "Consulting Period"), Executive shall
provide to the Company and its subsidiaries, parents and affiliates, including
Holding, (the "Company Group") consulting services commensurate with his status
and experience with respect to such matters as shall be reasonably requested
from time to time by the Company. The Company shall have the right to extend the
Consulting Period for a period of up to 12 additional months and Executive shall
have the right to terminate his obligation to provide consulting services
hereunder, in either case upon 30 days' written notice to the other party. The
parties may extend the Consulting Period for additional periods by mutual
agreement.
(b) During the Consulting Period, Executive shall not, solely by virtue
of the consulting services provided hereunder, be considered to be an officer or
employee of any member of the Company Group and shall not have the power or
authority to contract
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in the name of or bind any member of the Company Group. Executive shall at all
times during the Consulting Period be treated as an independent contractor and
shall be responsible for the payment of all taxes with respect to all amounts
paid to him hereunder. Executive shall not, by reason of the services performed
hereunder, be entitled to participate in any employee benefits plan made
available to any employee of any member of the Company Group.
(c) This Agreement is personal to the Executive and all of the services
required of the Executive hereunder shall be performed personally by him.
(d) Consulting Fees. In consideration of the Executive's agreement to
provide consulting services to be performed hereunder, and subject to the
Executive's compliance with the covenants and agreements contained herein, the
Company shall pay to Executive a monthly consulting fee of $3,000 (the
"Consulting Fee"), which shall be paid to Executive no later than the last
business day of each calendar month that is included in the Consulting Period.
The Consulting Fee shall be pro-rated to the extent that the Executive renders
consulting services hereunder for only a portion of any calendar month included
in the Consulting Period.
(e) Expenses. The Company shall also reimburse Executive for such
reasonable travel, lodging and other appropriate expenses incurred by Executive
in the course or on account of rendering consulting services hereunder, subject
to the submission by the Executive of evidence of such expenses in a form
reasonably satisfactory to the Company.
6. Entire Agreement; Related Documents. This Agreement (including
Exhibit A hereto) together with the Share Repurchase Agreement constitutes 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 Stock Subscription Agreements and any other agreements
made to or with Executive by any other person or entity) are merged herein and
superseded hereby.
7. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding on and
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
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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
accordance with the internal laws of the State of Delaware.
(c) Taxes. The Company may withhold from any payments made under this
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 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 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
be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or on the third business day after the mailing thereof,
provided that the party 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 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
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(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
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(g) Counterparts. This Agreement may be executed in counterparts, each
of 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 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: /s/ Xxxx Xxxxxx
---------------------------
Name: M. Little
Title: Exec. VP, CFO, CAO,
Treasurer
RACI HOLDING, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxx
Title: President and CEO
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Address: 000 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
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EXHIBIT A
GENERAL RELEASE OF ALL CLAIMS
WHEREAS, I, Xxxxxx Xxxxxx, retired from my employment with Remington
Arms Company, Inc. and each and every subsidiary and affiliate thereof
(hereinafter the "Company" as defined below) on March 31, 2003; 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 Xxxxxx, 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 XXXXXX, 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 THE 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 NATIONAL LABOR RELATIONS ACT, THE FAIR LABOR STANDARDS ACT, THE
REHABILITATION ACT OF 1973, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE
CIVIL RIGHTS ACTS OF 1866 AND 1871, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
THE CIVIL RIGHTS ACT OF 1991, THE EQUAL PAY ACT OF 1963, THE AGE DISCRIMINATION
ACT, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE OLDER WORKERS BENEFIT
PROTECTION ACT, THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, THE
OCCUPATIONAL SAFETY AND HEALTH ACT, THE CONSOLIDATED OMNIBUS BUDGET
RECONCILIATION ACT OF 1985, THE FAMILY MEDICAL LEAVE ACT OF 1993, THE
IMMIGRATION REFORM AND CONTROL ACT OF 1986, OR ANY OTHER FEDERAL, STATE OR LOCAL
LAWS OR REGULATIONS; UNPAID WAGES, SALARY, OVERTIME COMPENSATION, BONUSES,
COMMISSIONS, OR OTHER COMPENSATION OF ANY SORT;
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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 Retirement Agreement, I, Xxxxxx Xxxxxx, understand,
agree, represent and warrant as follows:
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 Xxxxxx, 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 Xxxxxx, 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 Xxxxxx, 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
not make public to anyone, whether by oral or written communications or
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 Xxxxxx, 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 Xxxxxx, will not file or bring any claims, charges,
complaints, or other actions against Company arising out of or based upon the
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circumstances of my employment or my separation from employment, except as
otherwise permitted by law.
5. That, I, Xxxxxx Xxxxxx, 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.
6. That, I, Xxxxxx Xxxxxx, 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 XXXXXX DO HEREBY ACKNOWLEDGE AS FOLLOWS:
(A) THAT, I, XXXXXX XXXXXX, 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 XXXXXX, 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 XXXXXX, 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.
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(E) THAT, I, XXXXXX XXXXXX, 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 North Carolina 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.
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: March 17, 2003 XXXXXX XXXXXX
----------------
/s/ Xxxxxx Xxxxxx
--------------------------------
Address: 000 Xxxxx Xxxx
-----------------------
Xxx Xxxxx, XX 00000
-----------------------
DATED: Xxxxx 00, 0000 XXXXXXXXX ARMS COMPANY, INC.
----------------
By: /s/ Xxxx Xxxxxx
----------------------------
Title: Exec VP, CFO, CAO,
Treasurer
-------------------------
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