EXHIBIT 10.57
DIRECTOR STOCK SUBSCRIPTION AGREEMENT
DIRECTOR STOCK SUBSCRIPTION AGREEMENT, dated as of _______ __, ____ (the
"Agreement"), between RACI Holding, Inc., a Delaware corporation ("Holding"),
and the Purchaser whose name appears on the signature page hereof (the
"Purchaser").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the RACI Holding, Inc. 2003 Stock
Option Plan (the "Plan"), Holding and the Purchaser entered into a Director
Stock Option Agreement, dated as of _________ __, ____ (the "Option Agreement")
pursuant to which Holding granted to the Purchaser options (the "Options") to
purchase shares of Class A Common Stock, par value $.01 per share ("Common
Stock") of Holding at the exercise price per share set forth on the signature
page hereof (the "Exercise Price") pursuant to the terms thereof and the Plan;
WHEREAS, the Purchaser desires to exercise Options to purchase the
aggregate number of shares of Common Stock set forth on the signature page
hereof (each a "Share" and, collectively, the "Shares");
WHEREAS, the Shares will, as of the issuance thereof pursuant to this
Agreement, be subject to the terms and conditions of the Amended and Restated
Registration and Participation Agreement, dated as of February 12, 2003, among
Holding and each of the other persons party thereto (the "Registration and
Participation Agreement");
NOW, THEREFORE, to implement the foregoing and in consideration of the
agreements contained herein, the parties hereto hereby agree as follows:
1. Purchase and Sale of Common Stock.
(a) Purchase of Common Stock. Subject to all of the terms and
conditions of this Agreement, the Purchaser hereby subscribes for and shall
purchase and Holding shall sell to the Purchaser, the Shares, at the Exercise
Price per Share, at the Closing referred to in Section 2(a) hereof.
Notwithstanding anything in this Agreement to the contrary, Holding shall have
no obligation to sell any shares of Common Stock to any person who is a resident
of a jurisdiction in which the sale of Common Stock to such person would
constitute a violation of the securities, "blue sky" or other laws of such
jurisdiction.
(b) Consideration. Subject to all of the terms and conditions of
this Agreement, the Purchaser shall deliver to Holding at the Closing referred
to in Section 2(a) hereof, immediately available funds in the amount of the
aggregate Exercise Price set forth on the signature page hereof.
2. Closing.
(a) Time and Place. Except as otherwise mutually agreed by Holding
and the Purchaser, the closing (the "Closing") of the transaction contemplated
by this Agreement shall be held at the offices of Debevoise & Plimpton, 919
Third Avenue, New York, New York at 10:00 a.m. (New York time) on or about
___________ __, ____.
(b) Delivery by Holding. At the Closing, Holding shall deliver to
the Purchaser a stock certificate registered in such Purchaser's name and
representing the Shares, which certificate shall bear the legends set forth in
Section 3(b) hereof.
(c) Delivery by the Purchaser. At the Closing, the Purchaser shall
deliver to Holding the consideration referred to in Section 1(b) hereof.
3. Purchaser's Representations, Warranties and Covenants.
(a) Investment Intention. The Purchaser represents and warrants that
the Purchaser is acquiring the Shares solely for the Purchaser's own account for
investment and not with a view to or for sale in connection with any
distribution thereof, it being understood that the Purchaser may sell some or
all of the Shares to Holding. The Purchaser agrees that the Purchaser will not,
directly or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise
dispose of any of the Shares (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of any Shares), except in compliance with the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder, and in compliance with applicable state securities or "blue sky"
laws and foreign securities laws, if any. The Purchaser further understands,
acknowledges and agrees that none of the Shares may be transferred, sold,
pledged, hypothecated or otherwise disposed of (i) unless any transferee of the
Purchaser shall have agreed in writing, pursuant to an instrument of assumption
satisfactory in form and substance to Holding, to make the representations and
warranties set forth in Section 3 hereof, other than Section 3(f), and to be
bound by the provisions of Sections 3 through 5 hereof, inclusive, (ii) unless
(A) such disposition is pursuant to an effective registration statement under
the Securities Act, (B) the Purchaser shall have delivered to Holding an opinion
of counsel, which opinion and counsel shall be reasonably satisfactory to
Holding, to the effect that such disposition is exempt from the provisions of
Section 5 of the Securities Act or (C) a no-action letter from the Commission,
reasonably satisfactory to Holding, shall have been obtained with respect to
such disposition and (iii) unless such disposition is pursuant to registration
under any applicable state or foreign securities laws or an exemption therefrom.
(b) Legends. The Purchaser acknowledges that the certificate or
certificates representing the Shares shall bear the following legends:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A STOCK SUBSCRIPTION AGREEMENT, DATED AS OF
________ __, ____, AND NEITHER THIS CERTIFICATE NOR THE SHARES
REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCK
SUBSCRIPTION AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, A COPY OF THE CURRENT FORM OF WHICH IS ON FILE WITH THE
SECRETARY OF HOLDING. THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE ENTITLED TO THE BENEFITS OF AND ARE BOUND BY THE OBLIGATIONS
SET FORTH IN AN AMENDED AND RESTATED REGISTRATION AND
PARTICIPATION AGREEMENT, DATED AS OF FEBRUARY 12, 2003, AMONG
HOLDING AND CERTAIN STOCKHOLDERS OF HOLDING, AS AMENDED AND AS
THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF THE CURRENT
FORM OF WHICH IS ON FILE WITH THE SECRETARY OF HOLDING."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF (i) UNLESS ANY TRANSFEREE OF THE HOLDER HEREOF SHALL HAVE
AGREED IN WRITING TO MAKE THE REPRESENTATIONS AND AGREEMENTS SET
FORTH IN SECTION 3 OF THE STOCK SUBSCRIPTION AGREEMENT AND TO BE
BOUND BY THE PROVISIONS OF SECTIONS 3 THROUGH 5, INCLUSIVE, OF
SUCH STOCK SUBSCRIPTION AGREEMENT, (ii) UNLESS (A) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (B) THE HOLDER
HEREOF SHALL HAVE DELIVERED TO HOLDING AN OPINION OF COUNSEL,
WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO
HOLDING, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF SUCH ACT OR (C) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, REASONABLY
SATISFACTORY TO HOLDING, SHALL HAVE BEEN OBTAINED WITH RESPECT
TO SUCH DISPOSITION AND (iii) SUCH DISPOSITION IS PURSUANT TO
REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM. IF THE HOLDER HEREOF IS A CITIZEN OR
RESIDENT OF ANY JURISDICTION OTHER THAN THE UNITED STATES, OR
SUCH HOLDER DESIRES TO EFFECT ANY TRANSFER IN ANY SUCH
JURISDICTION, THEN, IN
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ADDITION TO THE FOREGOING, COUNSEL FOR SUCH HOLDER (WHICH
COUNSEL SHALL BE REASONABLY SATISFACTORY TO HOLDING) SHALL HAVE
FURNISHED HOLDING WITH AN OPINION OR OTHER ADVICE REASONABLY
SATISFACTORY TO HOLDING TO THE EFFECT THAT SUCH TRANSFER WILL
COMPLY WITH THE SECURITIES LAWS OF SUCH JURISDICTION."
(c) Securities Law Matters. The Purchaser acknowledges receipt of
advice from Holding that (i) the offer and sale of the Shares hereby have not
been registered under the Securities Act based on an exemption provided under
Rule 701 promulgated under the Securities Act or qualified under any state
securities or "blue sky" laws or foreign securities laws, (ii) it is not
anticipated that there will be any public market for the Shares, (iii) the
Shares must be held indefinitely and the Purchaser must continue to bear the
economic risk of the investment in the Shares unless the Shares are subsequently
registered under the Securities Act and such state and foreign laws or an
exemption from registration is available, (iv) Rule 144 promulgated under the
Securities Act ("Rule 144") is not presently available with respect to sales of
the Shares, and Holding has made no covenant to make Rule 144 available, (v)
when and if the Shares may be disposed of without registration in reliance upon
Rule 144, such disposition can be made only in accordance with the terms and
conditions of Rule 144, (vi) Holding does not plan to file reports with the
Commission or make public information concerning Holding available unless
required to do so by law or the terms of its financing agreements, (vii) if the
exemption afforded by Rule 144 is not available, sales of the Shares may be
difficult to effect because of the absence of public information concerning
Holding, (viii) a restrictive legend in the form heretofore set forth shall be
placed on the certificates representing the Shares and (ix) a notation shall be
made in the appropriate records of Holding indicating that the Shares are
subject to restrictions on transfer set forth in this Agreement and, if Holding
should in the future engage the services of a stock transfer agent, appropriate
stop-transfer restrictions will be issued to such transfer agent with respect to
the Shares.
(d) Compliance with Rule 144. If any of the Shares are to be
disposed of in accordance with Rule 144, the Purchaser shall transmit to Holding
an executed copy of Form 144 (if required by Rule 144) no later than the time
such form is required to be transmitted to the Commission for filing and such
other documentation as Holding may reasonably require to assure compliance with
Rule 144 in connection with such disposition.
(e) Ability to Bear Risk. The Purchaser represents and warrants that
(i) the financial situation of the Purchaser is such that the Purchaser can
afford to bear the economic risk of holding the Shares for an indefinite period
and (ii) the Purchaser can afford to suffer the complete loss of the Purchaser's
investment in the Shares.
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(f) Restrictions on Sale upon Public Offering. The Purchaser
acknowledges and agrees that the Purchaser shall be entitled to the rights and
subject to the obligations created under the Registration and Participation
Agreement and the Shares shall be deemed to be "registrable securities," as
defined in the Registration and Participation Agreement, in each case, to the
extent provided therein.
(g) Registration. The Purchaser acknowledges and agrees that, in the
event that Holding files a registration statement under the Securities Act with
respect to an underwritten public offering of any shares of its capital stock
led by one or more underwriters at least one of which is an underwriter of
nationally recognized standing (a "Public Offering"), the Purchaser will not
effect any public sale or distribution of any shares of the Common Stock (other
than as part of such underwritten public offering), including but not limited
to, pursuant to Rule 144 or Rule 144A under the Securities Act, during the 20
days prior to and the 180 days after the effective date of such registration
statement. The Purchaser further understands and acknowledges that any sale,
transfer or other disposition of the Shares by him following a public offering
will be subject to compliance with, and may be limited under, the federal
securities laws and/or state "blue sky" securities laws.
(h) Access to Information. The Purchaser represents and warrants
that he has received and reviewed [insert disclosure materials]. The Purchaser
further represents and warrants that he was serving as a Director (as defined in
the Plan) as of the date on which the Options were granted to him.
4. Options of Holding, BRS and the C&D Fund Upon Proposed
Disposition.
(a) Rights of First Refusal. If the Purchaser desires to accept an
offer (which must be in writing and for cash, be irrevocable by its terms for at
least 60 days and be a bona fide offer as determined in good faith by the Board)
from any prospective purchaser to purchase all or any part of the Shares at any
time owned by the Purchaser, the Purchaser shall give notice in writing to
Holding, Bruckmann, Rosser, Sherrill & Co. II, L.P. (together with any successor
or other investment fund managed by Bruckmann, Rosser, Sherrill & Co., Inc.,
"BRS"), and The Clayton & Dubilier Private Equity Fund IV Limited Partnership, a
Connecticut limited partnership (together with any successor investment vehicle
managed by Clayton, Dubilier & Rice, Inc., the "C&D Fund") (i) designating the
number of Shares proposed to be sold, (ii) naming the prospective purchaser of
such Shares and (iii) specifying the price (the "Offer Price") at and terms (the
"Offer Terms") upon which the Purchaser desires to sell the same. During the
30-day period following receipt of such notice by Holding, the C&D Fund and BRS
(the "First Refusal Period"), Holding shall have the right to purchase from the
Purchaser the Shares specified in such notice, at the Offer Price and on the
Offer Terms. Holding hereby undertakes to use reasonable efforts to act as
promptly as practicable following such notice to determine whether it shall
elect to exercise such right. If Holding fails to exercise such rights within
the First Refusal Period, BRS and the C&D Fund shall have
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the right, pro-rated to reflect their respective ownership percentages of Common
Stock, to purchase the Shares specified in such notice, at the Offer Price and
on the Offer Terms, at any time during the period beginning at the earlier of
(x) the end of the First Refusal Period and (y) the date of receipt by BRS and
the C&D Fund of written notice that Holding has elected not to exercise its
rights and ending 30 days thereafter (the "Second Refusal Period"). The rights
provided hereunder shall be exercised by written notice to the Purchaser given
at any time during the applicable period. If such right is exercised, Holding or
the BRS and/or C&D Fund, as the case may be, shall deliver to the Purchaser,
within the applicable Refusal Period, a check for the Offer Price, payable to
the order of the Purchaser, against delivery of certificates or other
instruments representing the Shares so purchased, appropriately endorsed by the
Purchaser. If such right shall not have been exercised, including the delivery
to the Purchaser of a check for the Offer Price, prior to the expiration of the
Second Refusal Period, then at any time during the 30 days following the
expiration of the Second Refusal Period, the Purchaser may sell such Shares to
(but only to) the intended purchaser named in the Purchaser's notice to Holding,
BRS and the C&D Fund at the Offer Price and on the Offer Terms specified in such
notice, free of all restrictions or obligations imposed by, and free of any
rights or benefits set forth in, Section 4 of this Agreement, provided that such
intended purchaser shall have agreed in writing, pursuant to an instrument of
assumption satisfactory in substance and form to Holding, to make and be bound
by the representations, warranties and covenants set forth in Section 3 hereof,
other than those set forth in Section 3(h), this Section 4 (as to any subsequent
sale of the Shares) and Section 5 hereof.
(b) Public Offering. In the event that a Public Offering has been
consummated, none of Holding, BRS or the C&D Fund shall have any rights to
purchase the Shares from the Purchaser pursuant to this Section 4 and this
Section 4 shall not apply to a sale to the underwriters as part of a Public
Offering.
5. Take-Along Rights. The Purchaser acknowledges and agrees that
the Take-Along Rights provided to BRS pursuant to Section 5.1 of the
Registration and Participation Agreement shall apply to the Shares.
6. Representations and Warranties of Holding. Holding represents
and warrants to the Purchaser that (a) Holding has been duly incorporated and is
an existing corporation in good standing under the laws of the State of
Delaware, (b) this Agreement has been duly authorized, executed and delivered by
Holding and constitutes a valid and legally binding obligation of Holding
enforceable against Holding in accordance with its terms, (c) the Shares, when
issued, delivered and paid for in accordance with the terms hereof, will be duly
and validly issued, fully paid and nonassessable, and free and clear of any
liens or encumbrances other than those created pursuant to this Agreement, or
otherwise in connection with the transactions contemplated hereby, and (d) the
Shares, when issued and held by the Purchaser, by the Purchaser's estate upon
transfer by operation of law on the Purchaser's death or by BRS or the C&D Fund,
shall be "Registrable Securities" as provided in the Registration and
Participation Agreement.
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7. Covenants of Holding.
(a) Rule 144. Holding agrees that at all times after it has filed a
registration statement after the date hereof pursuant to the requirements of the
Securities Act or Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), relating to any class of equity securities of Holding
(other than (i) the registration of equity securities of Holding and/or options
or interests in respect thereof to be offered primarily to directors and/or
members of management or employees, sales agents or similar representatives of
Holding, or any subsidiary of Holding, directors or senior executives of
corporations in which entities managed or sponsored by Bruckmann, Rosser,
Sherrill & Co., Inc. or Clayton, Dubilier & Rice, Inc. have made equity
investments and/or other persons with whom Bruckmann, Rosser, Sherrill & Co.,
Inc. or Clayton, Dubilier & Rice, Inc. has consulting or other advisory
relationships, or (ii) the registration of equity securities and/or options or
other interests in respect thereof solely on Form S-4 or S-8 or any successor
form), it will file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the Commission
thereunder (or, if Holding is not required to file such reports, it will, upon
the request of the Purchaser, make publicly available such information as
necessary to permit sales pursuant to Rule 144 under the Securities Act), to the
extent required from time to time to enable the Purchaser to sell the Shares
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144, as such Rule may be amended from time to
time, or (ii) any successor rule or regulation hereafter adopted by the
Commission.
(b) State Securities Laws. Holding agrees to use its best efforts to
comply with all state securities or "blue sky" laws applicable to the sale of
the Shares to the Purchaser, provided that Holding shall not be obligated to
qualify or register the Shares under any such law or to qualify as a foreign
corporation or file any consent to service of process under the laws of any
jurisdiction or subject itself to taxation as doing business in any such
jurisdiction.
8. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid, or by any recognized
international equivalent of such mail delivery, to Holding or the Purchaser, as
the case may be, at the following addresses or to such other address as Holding
or the Purchaser, as the case may be, shall specify by notice to the others:
(i) if to Holding, to it at:
RACI Holding, Inc.
c/o Remington Arms Company, Inc.
870 Remington Drive
7
P.O. Box 700
Madison, North Carolina 27025-0700
Attention: Chairman
(ii) if to the Purchaser, to the Purchaser at the address set
forth on the signature page hereof.
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally or on the third business day after the
mailing thereof. Copies of any notice or other communication given under this
Agreement shall also be given to:
Bruckmann, Rosser, Sherrill & Co., II, L.P.
c/o Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street
New York, NY 10022
Attention: Stephen C. Sherrill
Clayton, Dubilier & Rice, Inc.
375 Park Avenue
New York, New York 10152
Attention: Michael Babiarz
and
Debevoise & Plimpton
919 Third Avenue
New York, New York 10022
Attention: Franci J. Blassberg, Esq.
The C&D Fund shall also be given a copy of any notice or other communication
between the Purchaser and Holding under this Agreement at its address as set
forth below:
The Clayton & Dubilier Private Equity
Fund IV Limited Partnership
270 Greenwich Avenue
Greenwich, Connecticut 06830
Attention: Clayton & Dubilier Associates
IV Limited Partnership,
Michael Babiarz
(b) Binding Effect; Benefits. This Agreement shall be binding upon
the parties to this Agreement and their respective successors and assigns and
shall inure to the benefit of the parties to the Agreement, BRS, the C&D Fund
and their respective successors and assigns. Except as provided in Sections 4
and 5, nothing in this
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Agreement, express or implied, is intended or shall be construed to give any
person other than the parties to this Agreement, BRS, the C&D Fund or their
respective successors or assigns any legal or equitable right, remedy or claim
under or in respect of any agreement or any provision contained herein.
(c) Waiver; Amendment.
(i) Waiver. Any party hereto or beneficiary hereof may by
written notice to the other parties (A) extend the time for the
performance of any of the obligations or other actions of the other
parties under this Agreement, (B) waive compliance with any of the
conditions or covenants of the other parties contained in this Agreement
and (C) waive or modify performance of any of the obligations of the
other parties under this Agreement, provided that any waiver of the
provisions of Sections 4 and 5 must be consented to in writing by the
BRS and the C&D Fund. Except as provided in the preceding sentence, no
action taken pursuant to this Agreement, including, without limitation,
any investigation by or on behalf of any party or beneficiary shall be
deemed to constitute a waiver by the party or beneficiary taking such
action of compliance with any representations, warranties, covenants or
agreements contained herein. The waiver by any party hereto or
beneficiary hereof of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any preceding or succeeding
breach and no failure by a party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's or beneficiary's
rights or privileges hereunder or shall be deemed a waiver of such
party's or beneficiary's rights to exercise the same at any subsequent
time or times hereunder.
(ii) Amendment. This Agreement may not be amended, modified
or supplemented orally, but only by a written instrument executed by the
Purchaser and Holding, and (in the case of any amendment, modification
or supplement to or affecting Section 4 or 5 hereof, or that adversely
affects the rights of BRS and/or the C&D Fund hereunder) consented to by
BRS and/or the C&D Fund, as applicable, in writing. The parties hereto
acknowledge that Holding's consent to an amendment or modification of
this Agreement may be subject to the terms and provisions of Holding's
financing agreements.
(d) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by Holding or the Purchaser without the prior written consent of the
other parties, BRS and the C&D Fund. Each of BRS and the C&D Fund may assign
from time to time all or any portion of their respective rights under Sections 4
and 5 hereof to one or more persons or other entities designated by BRS or the
C&D Fund, as the case may be.
(e) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
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YORK, EXCEPT TO THE EXTENT THAT THE CORPORATE LAW OF THE STATE OF DELAWARE
SPECIFICALLY AND MANDATORILY APPLIES.
(f) Section and Other Headings, etc. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(h) Delegation by the Board. All of the powers, duties and
responsibilities of the Board specified in this Agreement may, to the full
extent permitted by applicable law, be exercised and performed by any duly
constituted committee thereof to the extent authorized by the Board to exercise
and perform such powers, duties and responsibilities.
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IN WITNESS WHEREOF, Holding and the Purchaser have executed this
Agreement as of the date first above written.
RACI HOLDING, INC.
By:
-------------------------
Name:
Title:
THE PURCHASER:
[Name]
By:
-------------------------
Name:
Address of the Purchaser:
[Address]
Total Number of Shares
of Common Stock to be Purchased: [Shares]
Exercise Price: $_________
Aggregate Exercise Price: $_________
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