Investment Agreement - Samsonite Corp. and Apollo Investment Fund LP
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INVESTMENT AGREEMENT
between
SAMSONITE CORPORATION
and
APOLLO INVESTMENT FUND, L.P.
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Dated as of April 7, 1999
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TABLE OF CONTENTS Page
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1.Authorization of Preferred Shares................................................ 1
2.Sale and Purchase of Preferred Shares............................................ 2
3.Closing; Payment of Purchase Price............................................... 3
3.1 Closing Date.................................................................. 3
3.2 Deliveries at Closing......................................................... 3
4.Conditions to Closing............................................................ 4
4.1 Representations and Warranties................................................ 4
4.2 Performance; No Default....................................................... 4
4.3 Certificate of Designation.................................................... 4
4.4 Registration Rights Agreement................................................. 4
4.5 No Actions Pending............................................................ 4
4.6 Compliance with Securities Laws............................................... 5
4.7 Reservation of Common Stock................................................... 5
5. Back-stop Closing; Payment of Back-stop
Purchase Price..................................................... 5
5.1 Back-stop Closing Date........................................................ 5
5.2 Deliveries at Back-stop Closing............................................... 6
6. Conditions to Back-stop Closing............................................... 6
6.1 No Actions Pending............................................................ 6
6.2 Compliance with Securities Laws............................................... 7
7. Representations and Warranties of the Company................................. 7
7.1 Organization, Standing, etc................................................... 7
7.2 Capital Stock and Related Matters............................................. 7
7.3 Compliance with Other Instruments, etc........................................ 7
7.4 Governmental Consents, etc.................................................... 8
7.5 Offering of Securities........................................................ 9
7.6 Disclosure.................................................................... 9
7.7 Enforceability................................................................ 10
7.8 Integration................................................................... 10
8. Representations and Warranties of the
Purchaser..................................................................... 10
8.1 Investment Representations.................................................... 10
8.2 Acquisition for Own Account................................................... 11
8.3 Ability to Protect Its Own Interests and
Bear Economic Risks............................................................... 11
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8.4 Accredited Investor........................................................... 11
8.5 Access to Information......................................................... 11
8.6 No Brokers.................................................................... 11
9. Covenants of the Company...................................................... 12
9.1 Filing of Registration Statement.............................................. 12
9.2 Pricing of the Rights Offering................................................ 12
9.3 Use of Proceeds............................................................... 12
9.4 Bridge Fee.................................................................... 13
10. Covenants of the Purchaser.................................................... 13
10.1 Compliance with Laws.......................................................... 13
10.2 Pro Rata Voting and Related
Matters....................................................................... 13
10.3 Third Party Transfers......................................................... 14
11. Registration, Transfer and Substitution of Certificates for Preferred
Shares.......................................................................... 14
11.1 Stock Register; Ownership of Preferred Shares................................. 14
11.2 Replacement of Certificates................................................... 15
11.3 Restrictive Legends........................................................... 15
11.4 Notice of Proposed Transfer; Opinions of Counsel.............................. 16
12. Definitions................................................................... 17
12.1 Certain Defined Terms......................................................... 17
13. Survival of Representations and Warranties and
Indemnification; Certain Limitations
14. Amendments and Waivers........................................................ 20
15. Notices, etc.................................................................. 20
16. Miscellaneous................................................................. 21
Exhibit A Form of Certificate of Designations
Exhibit B Form of Registration Rights Agreement
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Samsonite Corporation
11200 East 45/th/ Avenue
Denver, Colorado 80239
April 7, 1999
Apollo Investment Fund, L.P.
c/o Apollo Advisors, L.P.
2 Manhattan Road
Purchase, New York 10577
Dear Sirs:
Samsonite Corporation, a Delaware corporation (the "Company"), has for
the past few months contemplated raising additional equity capital through a
rights offering pursuant to which the Company would distribute to its common
stockholders transferable rights to purchase up to $75,000,000 of its Common
Stock on a pro rata basis and has had discussions with Apollo Investment Fund,
L.P., a Delaware limited partnership (the "Purchaser"), regarding the
Purchaser's willingness to back-stop a portion of such rights offering. The
Purchaser has indicated a willingness to do so. In addition, the Company has an
immediate need for a portion of such additional equity capital and has requested
the Purchaser to supply such equity capital in the form of a bridge investment
equal to its pro rata share of the shares offered in the rights offering.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and intending to be legally bound the Company hereby
agrees with the Purchaser, as follows:
1. Authorization of Preferred Shares. The Company has authorized
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and provided for the issuance of 2,000 shares of its Series Z Convertible
Preferred Stock, $.01 par value, to be designated as its "Series Z Convertible
Preferred Stock" (the "Preferred Shares"). The Preferred Shares shall have the
relative rights, preferences and limitations, including, without limitation,
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the right to convert the Preferred Shares into shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), as set forth in the form
of the Certificate of Designations attached as Exhibit A hereto (the
"Certificate of Designation"). Certain capitalized terms used in this Agreement
are defined in Section 12; references to an "Exhibit" are, unless otherwise
specified, to an Exhibit attached to this Agreement and references to a
"section" are, unless otherwise specified, to one of the sections of this
Agreement.
2. Sale and Purchase of Preferred Shares. On the basis of the
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representations and warranties and subject to the terms and conditions set forth
herein:
(a) At the option of the Company, which shall be exercisable by
notice to the Purchaser at any time prior to 5:00 p.m., New York City time, on
April 14, 1999,the Purchaser agrees to purchase, at the Closing provided for in
Section 3, 1,000 Preferred Shares (the "Initial Preferred Shares"), at a
purchase price of $25,410 per Initial Preferred Share, for an aggregate purchase
price of $25,410,000.
(b) If the Company exercises its option pursuant to Section 2(a)
above, the Purchaser also agrees in connection with the Rights Offering that (i)
the Purchaser shall not, and shall cause all of its Affiliates (other than
individuals to whom Rights are distributed in their individual capacities as
stockholders of the Company) and all of its and their direct and indirect
transferees and assigns (and subsequent transferees and assigns) of Common Stock
and/or Rights not to, with respect to Rights distributed to the Purchaser, all
such Affiliates and all such transferees and assigns pursuant to their
subscription privileges, exercise or transfer such Rights (or exercise any over-
subscription privilege) and shall hold such Rights until such time as they
expire without value and (ii) to the extent that the Rights Offering is not
fully subscribed by stockholders of the Company (other than in respect of Rights
issued to the Purchaser and to Lion Advisors, L.P. for the benefit of an account
under management, as described in Section 5.1 hereof), the Purchaser shall
purchase additional shares of Common Stock (the "Back-stop Common Shares"), at
the same per share price at which shares are offered for purchase in the Rights
Offering, up to, but not exceeding, an aggregate investment by the
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Purchaser pursuant to this Section 2(b)(ii) of $12,090,000 (the "Back-stop
Arrangement"); provided, however, that the Purchaser may permit or cause one or
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more of its designees to satisfy, in whole or in part, Purchaser's obligations
under the Back-stop Arrangement; provided, further, that, notwithstanding the
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foregoing, the Purchaser shall remain obligated to ensure that the full amount
of the aggregate investment set forth above is invested pursuant to the Back-
stop Arrangement and, in the event such purchase is not permitted under the HSR
Act at the time the Rights Offering expires or is terminated, the Back-stop
Arrangement shall be effected as a purchase of a number of additional Preferred
Shares (the "Back-stop Preferred Shares") which are, in the aggregate,
convertible into a number of shares of Common Stock equal to the number of the
Back-stop Common Shares.
3. Closing; Payment of Purchase Price.
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3.1 Closing Date. If the Company exercises its option pursuant to
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Section 2(a), the sale of the Initial Preferred Shares to the Purchaser shall
take place at a closing (the "Closing") which shall occur at 12:00 noon, New
York City time, on April 15, 1999 or such earlier date as may be agreed upon by
the Company and the Purchaser.
3.2 Deliveries at Closing. At the Closing, the Company shall deliver
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to the Purchaser a certificate evidencing the Initial Preferred Shares in the
form of a single certificate (or such greater number of certificates
representing such Initial Preferred Shares as the Purchaser may reasonably
request) dated the date of the Closing and registered in the name of the
Purchaser, and the Purchaser agrees to deliver to the Company or its order funds
in the amount of the aggregate purchase price for such Initial Preferred Shares.
If at the Closing the Company shall fail to tender to the Purchaser duly
executed certificates evidencing the Initial Preferred Shares, as provided above
in this Section 3, or any of the conditions specified in Section 4 shall not
have been fulfilled to the Purchaser's reasonable satisfaction, the Purchaser
shall, at its election, be relieved of all further obligations under this
Agreement, without thereby waiving any other rights the Purchaser may have by
reason of such failure or such nonfulfillment. If at the Closing, the Purchaser
shall fail to tender to the Company the purchase price for the Initial Preferred
Shares, as provided above in this Section 3,
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other than on account of any of the conditions specified in Section 4 not having
been fulfilled to the Purchaser's reasonable satisfaction or on account of the
breach by the Company of any of its obligations under this Agreement, the
Company shall, at its election, be relieved of all further obligations under
this Agreement, without thereby waiving any other rights the Company may have by
reason of such failure.
4. Conditions to Closing. The Purchaser's obligation and, with
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respect to Sections 4.5 and 4.8 hereof, the Company's obligation, to consummate
the purchase and sale of the Initial Preferred Shares at the Closing is subject
to the fulfillment to its reasonable satisfaction, prior to or concurrently with
the Closing, of the following conditions:
4.1 Representations and Warranties. The representations and
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warranties of the Company contained in this Agreement shall be in all material
respects correct when made and at the time of the Closing, except as affected by
the consummation of the transactions contemplated by this Agreement.
4.2 Performance; No Default. The Company shall have performed and
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complied in all material respects with all agreements and conditions contained
in this Agreement required to be performed or complied with by it prior to or at
the Closing.
4.3 Certificate of Designation. The Certificate of Designation shall
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have been duly filed with the Secretary of State of the State of Delaware, and
the Restated Certificate of Incorporation of the Company, as amended by the
Certificate of Designation, shall be in full force and effect, and shall not
have been otherwise amended or modified.
4.4 Registration Rights Agreement. The Purchaser shall have received
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a fully executed counterpart of the Registration Rights Agreement substantially
in the form attached as Exhibit B hereto (the "Registration Rights Agreement").
4.5 No Actions Pending. There shall be no suit, action,
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investigation, inquiry or other proceeding by any Governmental Authority or any
other Person or any other
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legal or administrative proceeding pending or to the knowledge of the Company
threatened which questions the validity or legality of the transactions
contemplated by this Agreement, or seeks damages in connection therewith.
4.6 Compliance with Securities Laws. The offering and sale by the
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Company of the Initial Preferred Shares pursuant to this Agreement shall have
been made in compliance with all applicable requirements of federal and state
securities laws.
4.7 Reservation of Common Stock. The shares of Common Stock
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initially issuable upon conversion of the Initial Preferred Shares shall have
been duly authorized and reserved for issuance upon due conversion of the
Initial Preferred Shares.
4.8 Fairness Opinion. The Company shall have received the written
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opinion of Bear Stearns & Co., Inc., its financial advisor in connection with
the transactions contemplated by this Agreement, to the effect that the sale of
the Preferred Shares and the Back-stop Shares pursuant hereto (and the other
financial terms contained herein), taken as a whole, are fair to the Company
from a financial point of view.
5. Back-stop Closing; Payment of Back-stop Purchase Price.
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5.1 Back-stop Closing Date. In the event that the Rights Offering is
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not fully subscribed by stockholders of the Company (other than in respect of
Rights issued to the Purchaser and to Lion Advisors, L.P., in respect of an
aggregate of 3,557,757 shares of Common Stock owned by them on the date hereof),
the sale of the Back-stop Shares (as such term is defined in Section 12 hereof)
to the Purchaser pursuant to the Back-stop Arrangement shall take place at a
closing (the "Back-stop Closing") which shall occur promptly following the
expiration or termination of the Rights Offering and the satisfaction or waiver
of the conditions to closing set forth in Section 6 by the party entitled to
waive such conditions or following such time as agreed upon by the Company and
the Purchaser at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919
Third Avenue, New York, New York 10022.
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5.2 Deliveries at Back-stop Closing. At the Back-stop Closing, the
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Company shall deliver to the Purchaser a certificate evidencing the Back-stop
Shares in the form of a single certificate (or such greater number of
certificates representing such Back-stop Shares as the Purchaser may reasonably
request) dated the date of the Back-stop Closing and registered in the name of
the Purchaser, and the Purchaser agrees to deliver to the Company or its order
immediately available funds in the amount of the aggregate purchase price for
such Back-stop Shares. If at the Back-stop Closing the Company shall fail to
tender to the Purchaser duly executed certificates evidencing the Back-stop
Shares, as provided above in this Section 5, or any of the conditions specified
in Section 6 shall not have been fulfilled to the Purchaser's reasonable
satisfaction, the Purchaser shall, at its election, be relieved of all further
obligations under the Back-stop Arrangement, without thereby waiving any other
rights the Purchaser may have by reason of such failure or such nonfulfillment.
If at the Back-stop Closing, the Purchaser shall fail to tender to the Company
the full amount of the purchase price for the Back-stop Shares, as provided
above in this Section 5, other than on account of any of the conditions
specified in Section 6 not having been fulfilled to the Purchaser's reasonable
satisfaction or on account of the breach by the Company of any of its
obligations under the Back-stop Agreement, the Company shall, at its election,
be relieved of all further obligations under the Back-stop Arrangement, without
thereby waiving any other rights the Company may have by reason of such failure.
6. Conditions to Back-stop Closing. The Purchaser's obligation to
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purchase and pay for the Back-stop Shares to be sold to the Purchaser at the
Back-stop Closing is subject to the fulfillment to its reasonable satisfaction,
prior to or concurrently with the Back-stop Closing, of the following
conditions:
6.1 No Actions Pending. There shall be no suit, action,
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investigation, inquiry or other proceeding by any Governmental Authority or any
other Person or any other legal or administrative proceeding pending or to the
knowledge of the Company threatened which questions the validity or legality of
the transactions contemplated by the Back-stop Arrangement, or seeks damages in
connection therewith.
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6.2 Compliance with Securities Laws. The offering and sale by the
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Company, at or prior to the Back-stop Closing, of the Back-stop Shares pursuant
to this Agreement shall have been made in compliance with all applicable
requirements of federal and state securities laws.
7. Representations and Warranties of the Company. The Company
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represents and warrants that:
7.1 Organization, Standing, etc. The Company has been duly
----------------------------
incorporated and is validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted, to enter into
and perform all of its obligations under this Agreement, the Certificate of
Designation and the Registration Rights Agreement, to issue and sell the Initial
Preferred Shares and the Back-stop Shares (and the shares of Common Stock
issuable upon the conversion of the Preferred Shares) and to consummate the
transactions contemplated hereby.
7.2 Capital Stock and Related Matters. At the time of the Closing
---------------------------------
and after giving effect to the transactions contemplated by this Agreement, the
authorized capital stock of the Company will consist of (a) 60,000,000 shares of
Common Stock, of which 10,500,039 shares will be outstanding, (b) 2,000,000
shares of preferred stock, of which approximately 193,200 shares of 13 7/8%
senior redeemable exchangeable preferred stock will be outstanding, and (c)
2,000 shares of Series Z Convertible Preferred Stock, of which 1,000 will be
outstanding. All of the outstanding shares of the Company's capital stock are,
and at the Closing will be, validly issued and outstanding, fully paid and non-
assessable.
7.3 Compliance with Other Instruments, etc. Neither the Company nor
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any of its Significant Subsidiaries (within the meaning of Regulation S-X under
the Securities Act) is in violation of any term of its certificate or articles
of incorporation or by-laws, and neither the Company nor any of its Significant
Subsidiaries is in violation of any term of any material agreement or instrument
to which it is a party or by which it is bound or any term of any applicable
law, ordinance, rule or regulation of any Governmental Authority or any term of
any
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applicable order, judgment or decree of any court, arbitrator or Governmental
Authority, the consequences of which violation could reasonably be expected to
have a Material Adverse Effect. The compliance by the Company with all of the
provisions of this Agreement and the Registration Rights Agreement, the
execution, delivery and performance by the Company of this Agreement and the
Registration Rights Agreement, the issuance by the Company of shares of Common
Stock upon the conversion of the Preferred Shares, and the compliance by the
Company with the terms of the Certificate of Designation will not conflict with
or result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of the its
subsidiaries is subject, or constitute a Repayment Event thereunder, nor will
such actions result in any violation of the provisions of the certificate or
articles of incorporation or by-laws of the Company or any of its subsidiaries
or, assuming the obtaining of the consents and approvals and the making of the
filings and declarations referred to in Section 7.4 below, any statute or any
order, rule or regulation of any court or governmental agency or body (or any
self-regulatory organization (including but not limited to, the National
Association of Securities Dealers, Inc. (the "NASD"))) having jurisdiction over
the Company or any of its subsidiaries or any of their properties, except in
each case as would not, individually or in the aggregate have a Material Adverse
Effect.
7.4 Governmental Consents, etc. Except as may be required under the
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HSR Act and filings and approvals under foreign antitrust, investment or similar
statutes, no consent, approval or authorization of, or declaration or filing
with, any Governmental Authority on the part of the Company is required for the
valid execution and delivery of this Agreement, the valid offer, issue, sale and
delivery of the Preferred Shares or the Back-stop Common Shares pursuant to this
Agreement or the valid issue and delivery of shares of Common Stock issuable
upon conversion of the Preferred Shares. Except for (a) the requirements of
applicable state securities or blue sky laws, (b) consents, approvals, filings
or notices that will be given or made at or prior to the time of the Closing,
(c) filings and
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approvals required in connection with the compliance by the Company with its
registration obligations pursuant to the Registration Rights Agreement or (d)
filings under the HSR Act and filings and approvals under foreign antitrust,
investment or similar statutes, neither the Company nor any of its Subsidiaries
is required to obtain any consent, approval or authorization of, or to make any
declaration or filing with, any Governmental Authority as a condition to the
valid execution, delivery or performance of the Registration Rights Agreement or
the consummation of the transactions contemplated thereby.
7.5 Offering of Securities. Neither the Company nor any Person
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acting on its behalf has offered the Preferred Shares, the Back-stop Common
Shares or any similar securities of the Company to, or solicited any offers to
buy any thereof from, or otherwise approached or negotiated with respect thereto
with, any Person or Persons by any form of general solicitation or general
advertising or in any other manner as would subject the offering, issuance or
sale of any of the Preferred Shares or any of the Back-stop Common Shares to the
provisions of Section 5 of the Securities Act. Neither the Company nor any
Person acting on behalf of the Company has taken or will take any action which
would subject the offering, issuance or sale of any of the Preferred Shares or
the Back-stop Common Shares to the provisions of Section 5 of the Securities
Act.
7.6 Disclosure. Each document filed by the Company with the
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Securities and Exchange Commission pursuant to the Exchange Act since the filing
of the Company's Annual Report on Form 10-K for the fiscal year ended January
31, 1997 (together, the "SEC Documents"), when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Securities and Exchange
Commission thereunder. None of the SEC Documents (as of the respective dates
they were filed with the Securities and Exchange Commission) contained any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein, in light of the
circumstances under which they are made, not misleading. Since the respective
dates as of which information is provided in the SEC Documents, unless otherwise
specified in any SEC Document or otherwise disclosed to the Purchaser, there has
not been
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any material transaction not in the ordinary course of business entered into by
the Company, or any Material Adverse Effect.
7.7 Enforceability. This Agreement and the Registration Rights
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Agreement have been duly authorized, and executed and delivered by the Company
(assuming the due authorization, execution and delivery thereof by the
Purchaser) and constitute the valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law), or, in the case of the
Registration Rights Agreement, the rights to indemnification and contribution
contained therein may be limited by applicable state or federal securities laws
or the public policy underlying such laws.
7.8 Integration. Neither the Company nor any Affiliate of the
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Company has, directly or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as defined in
the Securities Act) which is or will be integrated with the sale of the
Preferred Shares and/or the Back-stop Common Shares, in a manner that would
require the registration of the Preferred Shares and/or the Back-stop Common
Shares under the Securities Act.
8. Representations and Warranties of the Purchaser. The Purchaser
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hereby represents and warrants as follows:
8.1 Investment Representations. The Purchaser understands that
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neither the Preferred Shares nor the Back-stop Common Shares or any Common Stock
issuable upon conversion of the Preferred Shares has been, or shall upon
delivery be, registered under the Securities Act and that the certificates
evidencing the Preferred Shares, the Back-stop Common Shares and such Common
Stock shall bear a legend to that effect. The Purchaser also understands that
the Preferred Shares and the Back-stop Common Shares are being offered and sold
to it pursuant to an exemption from
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registration contained in the Securities Act, based in part upon its
representations contained in this Agreement.
8.2 Acquisition for Own Account. The Purchaser is acquiring the
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Preferred Shares, any shares of Common Stock issued upon conversion thereof and
the Back-stop Common Shares for its own account for investment and not with a
view toward distribution in a manner which would violate the Securities Act.
8.3 Ability to Protect Its Own Interests and Bear Economic Risks. The
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Purchaser represents that by reason of its business and financial experience,
and the business and financial experience of its management, the Purchaser has
the capacity to protect its own interests in connection with the transactions
contemplated by this Agreement. The Purchaser is not an entity formed for the
specific purpose of consummating the transactions contemplated hereby. The
Purchaser further represents that the Purchaser is able to bear the economic
risk of an investment in the Preferred Shares, the Back-stop Common Shares and
the Common Stock to be issued upon conversion of the Preferred Shares and has an
adequate income independent of any income produced from an investment in the
Preferred Shares, the Back-stop Common Shares and such Common Stock and has
sufficient net worth to sustain a loss of all of its investment in the Preferred
Shares, the Back-stop Common Shares and such Common Stock without economic
hardship if such a loss should occur.
8.4 Accredited Investor. The Purchaser represents that it is an
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"accredited investor" as that term is defined in Regulation D promulgated under
the Securities Act.
8.5 Access to Information. The Purchaser has been given access to
---------------------
all Company documents, records, and other information, has received physical
delivery of all such documents, records and information which the Purchaser has
requested, and has had adequate opportunity to ask questions of, and receive
answers from, the Company's officers, employees, agents, accountants, and
representatives concerning the Company's business, operations, financial
condition, assets, liabilities, and all other matters relevant to its investment
in the Preferred Shares and the Back-stop Common Shares.
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8.6 No Brokers. No broker's or finder's fees or commissions will be
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payable by the Purchaser with respect to the transactions contemplated by this
Agreement, and the Purchaser hereby indemnifies and holds the Company harmless
from any claim, demand or liability for broker's or finder's fees alleged to
have been incurred at the instance of the Purchaser, its Affiliates or agents or
any Person acting on behalf of or at the request of the Purchaser, its
Affiliates or agents.
9. Covenants of the Company. The Company covenants that:
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9.1 Filing of Registration Statement. The Company shall use its
--------------------------------
commercially reasonable best efforts (i) to file a registration statement with
the Securities and Exchange Commission in respect of the Rights to be offered in
the Rights Offering, and the shares of Common Stock underlying such Rights, as
soon as reasonably practicable following the filing of the Company's Annual
Report on Form 10-K for its fiscal year ended January 31, 1999 and (ii) to cause
such registration statement to become effective, and to commence the Rights
Offering, as promptly as practicable thereafter.
9.2 Pricing of the Rights Offering. The Company shall commence the
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Rights Offering at a price not more than $1.00 above, nor less than $1.00 below,
the initial conversion price of the Initial Preferred Shares as set forth in the
Certificate of Designation; provided however that the price offered in the
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Rights Offering shall be equal to such initial conversion price (and no
adjustment of the conversion price shall be made pursuant to the second
paragraph of Section 2(i) of the Certificate of Designation) unless, prior to
commencement of the Rights Offering, the Company receives confirmation from the
NASD that a downward adjustment of such conversion price will not conflict with
the NASD' shareholder approval policy for Nasdaq Stock Market issuers. The
Rights Offering shall be made on customary terms and conditions.
9.3 Use of Proceeds. The Company will use such amount of the net
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proceeds from the sale of the Initial Preferred Shares as is required to fund
the premium payment under the Insurance Agreement and the balance of such
proceeds for general corporate purposes.
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9.4 Bridge Fee. The Company will pay to the Purchaser promptly
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following the Closing a fee in the amount of $1,000,000.
10. Covenants of the Purchaser. The Purchaser covenants that:
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10.1 Compliance with Laws. The Purchaser and its transferees shall
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comply with all filing and other reporting obligations under all Requirements of
Law, including, but not limited to, the HSR Act, which may be applicable to the
Purchaser with respect to the Preferred Shares, the Back-stop Common Shares and
shares of Common Stock issuable upon conversion of the Preferred Shares.
10.2 Pro Rata Voting and Related Matters.
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(a) The Purchaser hereby agrees to vote, and shall cause its
Affiliates to vote, the Back-stop Common Shares, shares of Common Stock issued
upon conversion of the Preferred Shares and any shares of Common stock acquired
upon exercise of Rights acquired in the open maket pro rata with all other
shares of Common Stock outstanding so that the number of shares that the
Purchaser and its Affiliates are entitled to vote in their sole discretion and
not pro rata does not exceed the Applicable Percentage. The term "Applicable
Percentage" means the percentage of the outstanding Common Stock beneficially
owned by the Purchaser and its Affiliates (including Lion Advisors, L.P.)
immediately prior to the issuance and sale of the Initial Preferred Shares
hereunder, as such ownership may be increased by any shares purchased after the
date hereof (other than shares of Common Stock purchased in connection with the
Rights Offering (including any Back-stop Common Shares purchased pursuant to the
Back-stop Arrangement) and shares of Common Stock issuable upon conversion of
the Preferred Shares). For purposes of the foregoing, shares beneficially owned
by (i) any individual director of the Company and (ii) Artemis America
Partnership and its Affiliates (collectively, "Artemis") shall not be deemed to
be owned by an Affiliate of the Purchaser.
(b) Purchaser also agrees that it shall cause its designees on the
Board of Directors of the Company to abstain from voting on the determination of
the
13
<PAGE>
subscription price in respect of the Rights to be issued in the Rights Offering.
10.3 Third Party Transfers.
---------------------
(a) Subject to filings required under the HSR Act and filings and
approvals required under foreign antitrust, investment or similar statutes, the
Preferred Shares shall automatically convert into shares of Common Stock upon
transfer by the Purchaser (other than any transfer to any Affiliate of the
Purchaser).
(b) Each certificate evidencing the Preferred Shares (including each
certificate evidencing Preferred Shares issued upon any transfer of Preferred
Shares) and each certificate evidencing shares of Common Stock issued upon
conversion of any Preferred Shares shall be stamped or otherwise imprinted with
a legend (in addition to any restrictive legend set forth in Section 11.3
hereof) in substantially the following form:
"The shares represented by this Certificate are subject to the
limitations contained in the Certificate of Designation, dated as of
April __, 1999, filed by Samsonite Corporation with the Secretary of
State of the State of Delaware, and such shares and any shares of
Common Stock issued upon conversion of any such shares may be
transferred only in compliance with the conditions contained therein
and in the Investment Agreement, dated as of April 7, 1999, between
Samsonite Corporation and Apollo Investment Fund, L.P. (the
"Investment Agreement"), and are otherwise subject to the limitations
contained in such Investment Agreement."
11. Registration, Transfer and Substitution of Certificates for
-----------------------------------------------------------
Preferred Shares.
----------------
11.1 Stock Register; Ownership of Preferred Shares.
---------------------------------------------
(a) The Company will keep at its principal office a register in which
the Company will provide for the registration of transfers or conversion of the
Preferred
14
<PAGE>
Shares. The Company may treat the Person in whose name any of the Preferred
Shares or shares issued upon conversion of any such Preferred Shares are
registered on such register as the owner thereof and the Company shall not be
affected by any notice to the contrary. All references in this Agreement to a
"holder" of any Preferred Shares or shares issued upon conversion of any such
Preferred Shares shall mean the Person in whose name such Preferred Shares or
shares issued upon conversion of any such Preferred Shares are at the time
registered on such register.
(b) Upon the surrender of any certificate evidencing Preferred
Shares, properly endorsed, for registration of transfer or for conversion at the
office of the Company maintained pursuant to subdivision (a) of this Section
11.1, the Company at its expense will (subject to compliance with Section 11.2
hereof, if applicable) execute and deliver to or upon the order of the holder
thereof (i) a new certificate or certificates for the same aggregate number of
shares of Preferred Shares less the number of Preferred Shares being converted,
if any, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, and (ii) a certificate or
certificates evidencing the number of shares of Common Stock to be issued upon
conversion of the Preferred Shares so surrendered.
11.2 Replacement of Certificates. Upon receipt of evidence reasonably
---------------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
certificate representing Preferred Shares, the Back-stop Common Shares or shares
of Common Stock issued upon the conversion of Preferred Shares and, in the case
of any such loss, theft or destruction, upon delivery of indemnity reasonably
satisfactory to the Company in form and amount or, in the case of any such
mutilation, upon surrender of such certificate for cancellation at the office of
the Company maintained pursuant to subdivision (a) of Section 11.1 hereof, the
Company at its expense will execute and deliver, in lieu thereof, a new
certificate representing Preferred Shares or shares of Common Stock, as the case
may be, of like tenor.
11.3 Restrictive Legends. Each certificate evidencing Preferred
-------------------
Shares (including each certificate evidencing Preferred Shares issued upon the
transfer of any
15
<PAGE>
Preferred Shares) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The shares represented by this Certificate and any shares of
Common Stock issuable upon conversion of any such shares have not been
registered under the Securities Act of 1933 and may not be transferred
in the absence of such registration or an exemption therefrom under
such Act."
Each certificate evidencing shares of Common Stock issued upon the conversion of
any of the Preferred Shares and Back-stop Common Shares, and each certificate
issued upon the transfer of any such Common Stock and Back-stop Common Shares,
shall be stamped or otherwise imprinted with a legend in substantially the
following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and may not be transferred
in the absence of such registration or an exemption therefrom under
such Act."
11.4 Notice of Proposed Transfer; Opinions of Counsel. Prior to any
------------------------------------------------
transfer of any Restricted Securities which is not the subject of an effective
registration statement under the Securities Act and in accordance with the plan
of distribution described in such registration statement, the holder thereof
will give written notice to the Company of such holder's intention to effect
such transfer and to comply in all other respects with this Section 11.4. Each
such notice shall describe the manner and circumstances of the proposed
transfer. If within 5 Business Days after receipt by the Company of such
notice, the Company requests an opinion of counsel for such holder that the
proposed transfer may be effected without registration of such Restricted
Securities under the Securities Act, then the Company shall not be required to
register such transfer, and the Purchaser shall not be entitled to effect such
transfer, unless and until the Company receives such an opinion (which counsel
and opinion shall each be reasonably satisfactory to the Company). Such holder
shall thereupon be entitled to transfer such shares in accordance with the terms
of the notice delivered by such holder to the Company. Each certificate
representing such shares issued upon or in connection with
16
<PAGE>
such transfer shall bear the restrictive legends required by Section 11.3.
12. Definitions.
-----------
12.1 Certain Defined Terms. As used in this Agreement the following
---------------------
terms have the following respective meanings:
Affiliate: With reference to any Person, a spouse of such Person, any
relative (by blood, adoption or marriage) of such Person within the second
degree, any director, officer or employee of such Person, any other Person of
which such Person is a member, director, officer or employee, and any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person.
Back-stop Shares: The Back-stop Common Shares or the Back-stop
Preferred Shares, as the case may be.
Business Day: Any day except a Saturday, a Sunday, or any day on
which banking institutions in New York, New York are required or authorized by
law or other governmental action to be closed.
Certificate of Designation: As defined in Section 1 of this
Agreement.
Closing: As defined in Section 3 of this Agreement.
Closing Date: The date of the Closing.
Common Stock: As defined in Section 1 of this Agreement.
Company: As defined in the introduction to this Agreement.
Exchange Act: At any time, the Securities Exchange Act of 1934 as then
in effect or any similar federal statute then in effect, and any reference to a
particular section of such Act shall be deemed to include a reference to the
comparable section, if any, in any such similar federal statute.
17
<PAGE>
Governmental Authority: Any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
HSR Act: The Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
Insurance Agreement: The insurance agreement, dated as of April 7,
1999, among the Company, Apollo Investment Fund, L.P. and Illinois National
Insurance Company.
Material Adverse Effect: Any effect that is materially adverse to the
properties, business, results of operations or financial condition of the
Company and its subsidiaries, taken as a whole.
Person: An individual, a partnership, a joint venture, a corporation,
a limited liability company, a trust, an unincorporated organization or a
government or any department or agency thereof.
Preferred Shares: As defined in Section 1 of this Agreement.
Registration Rights Agreement: As defined in Section 4.4 of this
Agreement.
Repayment Event: Any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any Person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
Requirement of Law: As to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
18
<PAGE>
Restricted Securities: All of the following: (a) any certificates for
Preferred Shares bearing the applicable legend or legends referred to in Section
11.3 hereof, (b) any shares of Common Stock which have been issued upon the
conversion of any of the Preferred Shares and any Back-stop Common Shares which
are evidenced by a certificate or certificates bearing the applicable legend or
legends referred to in such section and (c) unless the context otherwise
requires, any shares of Common Stock which are at the time issuable upon the
conversion of Preferred Shares and which, when so issued, will be evidenced by a
certificate or certificates bearing the applicable legend or legends referred to
in such section.
Rights: The transferable subscription rights distributed in the
Rights Offering.
Rights Offering: The Company's proposed rights offering, pursuant to
which the Company proposes to distribute pro rata, based on their ownership of
outstanding shares of Common Stock, to all of its common stockholders
transferable subscription rights to purchase shares of Common Stock for an
aggregate purchase price of $75,000,000 (including the Common Stock issuable
upon conversion of the Initial Preferred Shares). In the event that the
aggregate subscription price for shares of Common Stock offered for purchase in
the Rights Offering is more than $75,000,000 (including the Common Stock
issuable upon conversion of the Initial Preferred Shares), the limitations
contained in Section 2(b) hereof regarding the exercise of Rights will be
appropriately adjusted. For purposes of the foregoing sentence, the gross
purchase price for the Initial Preferred Shares shall be treated as part of the
Rights Offering.
Securities Act: At any time, the Securities Act of 1933 as then in
effect or any similar federal statute then in effect, and any reference to a
particular section of such Act shall be deemed to include a reference to the
comparable section, if any, in any such similar federal statute.
Securities and Exchange Commission: The U.S. Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act or the Exchange Act, whichever is the relevant statute for the particular
purpose.
19
<PAGE>
Any of the above-defined terms may, unless the context otherwise
requires, be used in the singular or plural depending on the reference.
13. Survival of Representations and Warranties and Indemnification;
---------------------------------------------------------------
Certain Limitations. All representations and warranties contained in this
-------------------
Agreement shall survive the execution and delivery of this Agreement, any
investigation at any time made by the Purchaser or on its behalf, and the
purchase of the Preferred Shares and any Back-stop Common Shares by the
Purchaser under this Agreement and any conversion of any of the Preferred
Shares, or any disposition of any shares of Common Stock issued upon conversion
of any of the Preferred Shares or any Back-stop Common Shares. No written
(except as explicitly stated therein) or oral statements made by or on behalf of
the Company, other than in this Agreement and the Registration Rights Agreement,
shall constitute representations or warranties.
14. Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or modified and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and the Purchaser.
15. Notices, etc. All notices and other communications under this
-------------
Agreement shall be in writing and, unless otherwise provided herein, shall be
deemed duly given if delivered personally, by facsimile transmission (receipt of
which is confirmed) or sent by registered or certified mail (first-class mail,
postage pre-paid, return receipt requested) or by overnight courier or similar
courier service, addressed, (a) if to the Purchaser, at the address set forth at
the beginning of this Agreement (or if by facsimile transmission to (212) 261-
4070) attention: Michael Weiner, or at such other address as the Purchaser shall
have furnished to the Company in writing, or (b) if to any other holder of any
Preferred Shares, Back-stop Common Shares or shares of Common Stock into which
any of the Preferred Shares have been converted, at such address (and/or
facsimile number) as such other holder shall have furnished to the Company in
writing, or, until any such other holder so furnishes to the Company an address
(and/or facsimile number), then to and at the address (and/or facsimile number)
of the last holder of such Preferred
20
<PAGE>
Shares, Back-stop Common Shares or shares of Common Stock into which such
Preferred Shares have been converted who has furnished an address (and/or
facsimile number) to the Company, or (c) if to the Company at the address of the
Company set forth at the beginning of this Agreement (or if by facsimile to
(303) 373-6406 attention: General Counsel), to the attention of its General
Counsel, or at such other address (and/or facsimile number), or to the attention
of such other officer, as the Company shall have furnished to the Purchasers and
each such other holder in writing, in each case with a copy to the attention of
Gregory A. Fernicola at the following address: Skadden, Arps, Slate, Meagher &
Flom LLP, 919 Third Avenue, New York, New York 10022 (or if by facsimile to
(212) 735-2000).
16. Miscellaneous. This Agreement shall be binding upon and inure to
-------------
the benefit of and be enforceable by the respective successors and permitted
assigns of the parties hereto. This Agreement shall not inure to the benefit of
any other third party. This Agreement embodies the entire agreement and
understanding between the Purchaser and the Company and supersedes all prior
agreements and understandings relating to the subject matter hereof. This
Agreement shall be construed and enforced in accordance with and governed by the
law of the State of New York without regard to the principles regarding
conflicts of laws. The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof. This Agreement
may be executed in counterparts, each of which shall be an original, but both of
which together shall constitute one instrument.
21
<PAGE>
If the Purchaser is in agreement with the foregoing, please sign this
letter and the accompanying counterpart and return one of the same to the
Company, whereupon this letter shall become a binding agreement between the
Purchaser and the Company.
Very truly yours,
SAMSONITE CORPORATION
By: Steve Armstrong
---------------
Name: Steve Armstrong
Title: General Counsel
The foregoing Agreement is hereby
agreed to as of the date first
written above.
APOLLO INVESTMENT FUND, L.P.
By: Apollo Advisors, L.P.,
Its General Partner
By: Apollo Capital Management, Inc.,
Its General partner
By: Robert H. Falk
Name: Robert H. Falk
Title: Vice President
<PAGE>
EXHIBIT A
CERTIFICATE OF THE DESIGNATIONS,
POWERS, PREFERENCES AND RIGHTS
OF
SERIES Z CONVERTIBLE PREFERRED STOCK
OF
SAMSONITE CORPORATION
________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
________________________
Samsonite Corporation, a Delaware corporation (the "Company"),
certifies that pursuant to the authority contained in Article IV of its Restated
Certificate of Incorporation, as amended (the "Certificate of Incorporation"),
and in accordance with the provisions of Section 151 of the General Corporation
Law of the State of Delaware, the Board of Directors of the Company at a meeting
duly called and held on April 7, 1999, duly approved and adopted the following
resolution which resolution remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Certificate of Incorporation, the Board of Directors does
hereby designate, create, authorize and provide for the issue of a series of
preferred stock having a par value of $0.01 per share, which shall be designated
as "Series Z Convertible Preferred Stock" (the "Convertible Preferred Stock")
consisting of 2,000 shares, having the following powers,
i
<PAGE>
preferences and rights, and qualifications, limitations and restrictions
thereof, as follows (certain capitalized terms used herein are defined in
Section 13 hereof):
ii
<PAGE>
1. Dividends.
---------
(i). Holders of shares of the Convertible Preferred Stock shall be
entitled to receive, when, as and if dividends are declared by the Board of
Directors out of funds of the Company legally available therefor, if such shares
of Convertible Preferred Stock are held of record at the close of business on
any record date (each, a "Record Date") with respect to payment of dividends on
the Common Stock, the amount of dividends as set forth below. The amount of
dividends payable in respect of each share of Convertible Preferred Stock shall
be equal to the result obtained by multiplying (a) the number of shares
(including fractions) of Common Stock into which such share of Convertible
Preferred Stock is (or, but for the proviso to the first sentence of Section
2(i) below, would be) convertible on the Record Date by (b) the amount of
dividends declared and paid on each share of Common Stock; provided, however,
-------- -------
that if the Company declares and pays a dividend on the Common Stock consisting
in whole or in part of Common Stock, then no such dividend shall be payable in
respect of the Convertible Preferred Stock on account of the portion of such
dividend on the Common Stock payable in Common Stock and in lieu thereof the
anti-dilution adjustment in Section 3(i) below shall apply and; provided
--------
further, that holders of shares of Convertible Preferred Stock shall not be
-------
entitled to receive, and shall not participate in the distribution of, the
transferable subscription rights to be distributed to holders of the Company's
Common Stock in connection with the Company's proposed rights offering referred
to in the Investment Agreement (the "Rights Offering"). No dividend shall be
paid or declared on any share of Common Stock (other than dividends payable in
Common Stock and other than pursuant to the Rights Offering), unless a dividend,
payable in the same consideration and manner, is simultaneously paid or
declared, as the case may be, on each share of Convertible Preferred Stock in an
amount determined as set forth above. For purposes hereof, the term "dividends"
shall include any pro rata distribution by the Company, out of funds of the
--- ----
Company legally available therefor, of cash, property, securities (including,
but not limited to, rights, warrants or options) or other property or assets to
the holders of the Common Stock, whether or not paid out of capital, surplus or
earnings.
<PAGE>
(ii) Notwithstanding the foregoing, if dividends are declared in
respect of the Common Stock that are payable in rights, options, warrants or
other convertible or exchangeable securities (collectively, "Rights") that
entitle the holders thereof to acquire shares of Common Stock (other than
pursuant to the Rights Offering), the dividends payable in respect of the
Convertible Preferred Stock shall consist of substantially identical Rights that
instead are convertible into or exercisable or exchangeable for (as the case may
be) shares of convertible preferred stock that have substantially identical
terms and provisions (determined by the Company in good faith) as the
Convertible Preferred Stock (the "New Convertible Preferred Stock") and the
amount of such dividend payable in respect of each share of Convertible
Preferred Stock shall be such that the number of shares of New Convertible
Preferred Stock (and/or fraction(s) thereof) into which or for which such Rights
are convertible, exchangeable or exercisable shall equal that number of shares
of New Convertible Preferred Stock which, if fully converted, would be
convertible into the number of shares of Common Stock into which or for which
the Rights would have been convertible, exchangeable or exercisable had such
dividend been payable to the holders of the Convertible Preferred Stock in
accordance with paragraph (i) above without regard to this paragraph, and the
conversion price, exercise price and/or exchange rate thereof shall be
determined in a similar manner (determined by the Company in good faith).
(iii) Prior to declaring any dividend on shares of Common Stock, the
Company shall take all prior corporate action necessary to authorize the
issuance of any securities payable as a dividend in respect of the Convertible
Preferred Stock.
2. Conversion Rights.
-----------------
(i) Each share of Convertible Preferred Stock shall be convertible
at any time, or from time to time, unless previously redeemed by the Company
pursuant to Section 5 hereof, at the option of the holder thereof, into such
number of shares of Common Stock as described below; provided, however, that a
-------- -------
holder of Convertible Preferred Stock may not convert its shares of Convertible
Preferred Stock into shares of Common Stock prior to the later of (x) expiration
or termination of any waiting period (and any extension thereof) under (1) the
Hart-Scott-Rodino
<PAGE>
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and (2) any
similar period (as determined by the Company in good faith) under the
regulations and decisions of the Commission of the European Communities ("EC
Rules"), applicable to such holder's acquisition of the Convertible Preferred
Stock, the Common Stock underlying the Convertible Preferred Stock, the Rights
Offering or any of the transactions contemplated thereby, to the extent that the
Company determines in good faith such filing and waiting period under such EC
Rules are in the best interests of the Company and (y) the completion,
termination or abandonment (as determined by the Company in good faith) of the
Rights Offering. The number of shares of Common Stock issuable upon conversion
of each share of Convertible Preferred Stock shall be equal to the result
obtained by dividing (a) $25,410 by (b) the Conversion Price then in effect and
(c) in the case of any fraction of a share of Convertible Preferred Stock, by
multiplying such result by such fraction.
If the Company issues subscription rights in the Rights Offering with a per
share subscription price for Common Stock that is different than the Conversion
Price, the Conversion Price in effect immediately prior to the date of
commencement of the Rights Offering shall automatically be adjusted, effective
as of the date of commencement of the Rights Offering, to equal such per share
subscription price.
(ii) To convert shares of Convertible Preferred Stock, a holder must
(A) surrender the certificate or certificates evidencing such holder's shares of
Convertible Preferred Stock to be converted, duly endorsed in a form
satisfactory to the Company, at the office of the Company or transfer agent for
the Convertible Preferred Stock, if any, (B) notify the Company at such office
that such holder elects to convert Convertible Preferred Stock and the number of
shares such holder wishes to convert, (C) state in writing the name or names in
which such holder wishes the certificate or certificates for shares of Common
Stock to be issued, and (D) pay any transfer or similar tax, if required. Such
notice referred to in clause (B) above shall be delivered substantially in the
following form:
"NOTICE TO EXERCISE CONVERSION RIGHT
v
<PAGE>
The undersigned, being a holder of the Series Z Convertible Preferred Stock
of Samsonite Corporation (the "Convertible Preferred Stock") irrevocably
exercises the right to convert ____________ outstanding shares of Convertible
Preferred Stock on ___________, ____, into shares of Common Stock of Samsonite
Corporation in accordance with the terms of the shares of Convertible Preferred
Stock, and directs that the shares issuable and deliverable upon the conversion,
together with any check in payment for fractional shares, be issued and
delivered in the denominations indicated below to the registered holder hereof
unless a different name has been indicated below. If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Dated: [At least one Business Day prior to the date fixed for conversion]
Fill in for registration of
shares of Common Stock
if to be issued otherwise
than to the registered
holder:
-------------------------------------
Name
-------------------------------------
Address
----------------- ----------------------------
Please print name and (Signature)
address, including postal
code number
Denominations:__________________"
(iii) Shares of the Convertible Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the day of the
surrender of such shares for conversion in accordance with the foregoing
<PAGE>
provisions, and the person or persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the conversion date, the Company shall issue and shall deliver at
such office a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with payment in lieu of any
fraction of a share, as hereinafter provided, to the person or persons entitled
to receive the same.
(iv) The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of the Convertible Preferred Stock, the full
number of shares of Common Stock then issuable upon the conversion of all shares
of Convertible Preferred Stock then outstanding and shall take all such action
and obtain all such permits or orders as may be necessary to enable the Company
lawfully to issue such Common Stock upon such conversion.
(v) No fractional shares of Common Stock shall be issued upon conversion,
but, instead of any fraction of a share which would otherwise be issuable, the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the Market Price of such fraction as of the close of business on the
day of conversion.
(vi) The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of the
Convertible Preferred Stock pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Common Stock in a name other than that in
which the shares of Convertible Preferred Stock so converted were registered,
and no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
3. Anti-dilution Adjustments.
-------------------------
(i) If the Company (a) pays a dividend or makes any other
distribution on or in respect of the Common Stock
<PAGE>
payable in Common Stock, (b) subdivides or combines its outstanding shares of
Common Stock into a greater or smaller number of shares, or (c) issues or
distributes any equity securities by reclassification of its Common Stock (other
than any issuance constituting a dividend in which the holders of the
Convertible Preferred Stock participate in accordance with Section 1 above), the
Conversion Price shall be adjusted as of the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or distribution or at the opening of business on the day
following the day on which such subdivision, combination or reclassification
becomes effective, as the case may be, so that the holders of the Convertible
Preferred Stock shall, upon surrender thereafter of any shares of Convertible
Preferred Stock for conversion, be entitled to receive the number of shares of
Common Stock that such holder would have owned or have been entitled to receive
after the happening of any of the events described above had such Convertible
Preferred Stock been converted immediately prior to the record date in the case
of a dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification.
(ii) In the case of any consolidation or merger of the Company with
another entity, as a result of which shares of Common Stock shall be changed
into the same or a different number of shares of the same or another class or
classes of stock or securities of the Company or another entity or any other
property or assets, then the holders of Convertible Preferred Stock shall
thereafter have the right to receive upon surrender thereafter of their shares
of Convertible Preferred Stock for conversion, such shares of common stock
and/or securities and/or other property or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common Stock that
would otherwise have been received by such holders had they converted the
Convertible Preferred Stock immediately prior to the effective date of such
merger or consolidation.
(iii) Upon the occurrence of any event described in paragraphs (i) or
(ii) above, the Company shall promptly mail to each holder of Convertible
Preferred Stock, first class, postage prepaid, a notice which shall describe
such event and the change in the number of shares or other assets or securities
issuable upon conversion of the Convertible Preferred Stock, setting forth in
reasonable
<PAGE>
detail the method of calculation thereof and the facts upon which such
calculation is based.
(iv) If:
(a) the Company takes any action which would require an adjustment
pursuant to paragraphs (i) or (ii) above;
(b) the Company consolidates or merges with, or transfers all or
substantially all of its assets to, another corporation, and stockholders of the
Company must approve the transaction; or
(c) there is a dissolution or liquidation of the Company;
the Company shall mail to holders of the Convertible Preferred Stock, first
class, postage prepaid, a notice stating the proposed record or effective date,
as the case may be. The Company shall mail the notice at least 10 days before
such date. However, failure to mail the notice or any defect in it shall not
affect the validity of any transaction referred to in clause (A), (B) or (C) of
this paragraph.
4. Liquidation Preference. In the event of any voluntary or
----------------------
involuntary liquidation, winding-up or dissolution of the Company or reduction
or decrease in its capital stock resulting in a distribution of assets to the
holders of any class or series of the Company's capital stock, after there shall
have been paid, or set apart for payment, to the holders of the outstanding
shares of any class having preference over the Convertible Preferred Stock the
preferential amounts as to which they are respectively entitled, the holders of
the Convertible Preferred Stock shall be entitled to share ratably with the
holders of the Common Stock (and all other classes and series of stock entitled
to participate with the Common Stock) in the remaining assets of the Company on
the basis that such holders would share if all outstanding shares of Convertible
Preferred Stock were then converted into Common Stock; provided, that in the
--------
event that such payment would be less than $0.01 per share of Convertible
Preferred Stock, the holders of the Convertible Preferred Stock shall instead be
entitled to receive out of the assets of the Company available for distribution
to its stockholders,
<PAGE>
whether from capital, surplus or earnings, an amount per share of Convertible
Preferred Stock equal to $0.01 per share (or if less than $0.01 per share is
available for distribution in respect of the Convertible Preferred Stock, then
all such remaining funds shall be distributed pro rata in respect of the
--- ----
Convertible Preferred Stock), before any payment or distribution shall be made
to the holders of the Common Stock (or any other class or series of stock
entitled to participate with the Common Stock). If, upon any liquidation,
winding-up or dissolution of the Company, the assets of the Company, or proceeds
thereof, distributable among the holders of shares of Convertible Preferred
Stock or any capital stock ranking on a parity with the Convertible Preferred
Stock upon liquidation, winding-up or dissolution of the Company, shall be
insufficient to pay in full the preferential amounts to which such stock would
be entitled, then such assets, or the proceeds thereof, shall be distributable
among such holders ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were payable in full.
For the purposes hereof, neither a consolidation nor merger of the Company with
one or more other corporations, nor a sale or a transfer of all or substantially
all of the assets of the Company, shall be deemed to be a liquidation, winding-
up or dissolution, voluntary or involuntary, of the Company.
5. Mandatory Redemption.
--------------------
(i) Subject to prior compliance with the HSR Act, and subject to
compliance with any applicable EC Rules to the extent that the Company
determines in good faith that such compliance is in the best interests of the
Company, the Company may, at its option, redeem the shares of Convertible
Preferred Stock, in whole or in part, at any time subsequent to the completion,
termination or abandonment (as determined by the Company in good faith) of the
Rights Offering, or from time to time thereafter, in exchange for Common Stock.
The number of shares of Common Stock so issuable upon redemption of each share
of Convertible Preferred Stock shall be equal to the result obtained by dividing
(a) $25,410 by (b) the Conversion Price in effect on the Redemption Date (as
defined below) and (c) in the case of any fraction of a share of Convertible
Preferred Stock, by multiplying such result by such fraction.
<PAGE>
(ii) At least 10 and not more than 60 days prior to the date fixed for
any redemption (the "Redemption Date"), the Company shall provide written notice
by first class mail, postage prepaid, to each holder of record of the
Convertible Preferred Stock on the record date fixed for such redemption of the
Convertible Preferred Stock at their last address as it shall appear on the
books of the Company; provided, however, that no failure to give such notice or
-------- -------
any defect therein or in the mailing thereof shall affect the validity of the
procedure for the redemption of any shares of Convertible Preferred Stock except
as to the holder to whom the Company has failed to give notice or except as to
the holder to whom notice was defective. In addition to any information
required by law or by the applicable rules of any exchange upon which
Convertible Preferred Stock may be listed or admitted to trading, such notice
shall state:
(1) that such redemption is being made pursuant to the mandatory
redemption provisions of Section 5(i) hereof;
(2) the Redemption Date;
(3) the number of shares of Convertible Preferred Stock to be
redeemed and, if less than all shares held by such holder are to be redeemed,
the number of such shares to be redeemed;
(4) the Conversion Price then in effect;
(5) the number of shares of Common Stock to be received by such
holder in exchange for such holder's shares of Convertible Preferred Stock which
are to be redeemed and the method of calculation thereof; and
(6) the place or places where certificates for such shares are to
be surrendered for exchange, including any procedures applicable to redemptions
to be accomplished through book-entry transfers.
Upon the mailing of any such notice of redemption, the Company shall become
obligated to redeem at the time of redemption specified thereon all shares
called for redemption.
<PAGE>
(iii) If notice has been mailed in accordance with Section 5(ii) above
and provided, that at all times prior to the Redemption Date specified in such
--------
notice, the Company shall reserve and keep available, free from pre-emptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the redemption of the Convertible Preferred Stock, the full number of
shares of Common Stock issuable upon the exchange of the Convertible Preferred
Stock, then, from and after the Redemption Date, said shares shall no longer be
deemed to be outstanding and shall not have the status of shares of Convertible
Preferred Stock. Upon surrender, in accordance with said notice, of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Company shall so require and the notice shall so state), such
shares shall be redeemed by the Company in exchange for the applicable number of
shares of Common Stock determined in accordance with Section 5(i) above. In
case fewer than all the shares represented by any such certificate are redeemed,
a new certificate or certificates shall be issued representing the unredeemed
shares without cost to the holder thereof.
6. Mandatory Conversion. Subject to prior compliance with the HSR
--------------------
Act, and subject to compliance with any applicable EC Rules to the extent that
the Company determines in good faith that such compliance is in the best
interests of the Company, in the event that, at any time subsequent to the
completion, termination or abandonment (as determined by the Company in good
faith) of the Rights Offering, any holder of Convertible Preferred Stock
transfers beneficial ownership of any of such holder's shares of Convertible
Preferred Stock to any third party not affiliated with such holder, all such
shares of Convertible Preferred Stock so transferred shall be automatically
deemed converted into Common Stock (at the conversion rate set forth in Section
2(i) hereof) upon any such transfer, without any action on the part of the
Company, such holder or the transferee.
7. Voting Rights.
-------------
(i) The holders of record of shares of the Preferred Stock shall
have no voting rights, except as required by law or by the applicable rules of
any securities exchange or automated quotation system upon
<PAGE>
which Convertible Preferred Stock may be listed or admitted to trading and as
hereinafter provided in this Section 7.
(ii) Upon any consolidation, merger, reclassification or similar
transaction, as a result of which:
(a) the Convertible Preferred Stock would be converted into
anything other than the underlying Common Stock into
which such Convertible Preferred Stock would have been
converted had such conversion taken place prior to the
effective date of such consolidation, merger,
reclassification or similar transaction or
(b) the terms of the Common Stock underlying the
Convertible Preferred Stock would be amended or altered
(each of the events described in clause (a) above and
this clause (b) is referred to herein as a "Voting
Rights Triggering Event"));
then the holders of a majority of the outstanding shares of Convertible
Preferred Stock, voting as a separate single class, shall have the right to
approve any such consolidation, merger, reclassification or similar transaction.
(iii) Whenever such voting right shall have vested by virtue of a
Voting Rights Triggering Event, such right may be exercised initially either at
a special meeting of the holders of Convertible Preferred Stock, called as
hereinafter provided, or at any annual meeting of stockholders or by the written
consent of the holders of Convertible Preferred Stock.
(iv) At any time when such voting right shall have vested in the
holders of Convertible Preferred Stock and if such right shall not already have
been initially exercised, a proper officer of the Company shall, upon the
written request of holders of record of 10% or more of the Convertible Preferred
Stock then outstanding, addressed to the Secretary of the Company, call a
special meeting of holders of Convertible Preferred Stock. Such meeting shall
<PAGE>
be held at the earliest practicable date upon the notice required for annual
meetings of stockholders at the place for holding annual meetings of
stockholders of the Company or, if none, at a place designated by the Secretary
of the Company. If such meeting shall not be called by the proper officers of
the Company within 30 days after the personal service of such written request
upon the Secretary of the Company, or within 30 days after mailing the same
within the United States, by registered mail, addressed to the Secretary of the
Company at its principal office (such mailing to be evidenced by the registry
receipt issued by the postal authorities), then the holders of record of 10% of
the shares of the Convertible Preferred Stock then outstanding may designate in
writing a holder of Convertible Preferred Stock to call such meeting at the
expense of the Company, and such meeting may be called by such person so
designated upon the notice required for annual meetings of stockholders and
shall be held at the place for holding annual meetings of the Company or, if
none, at a place designated by such holder. Any holder of Convertible Preferred
Stock that would be entitled to vote at such meeting shall have access to the
stock books of the Company for the purpose of causing a meeting of stockholders
to be called pursuant to the provisions of this Section 7. Notwithstanding the
provisions of this paragraph, however, no such special meeting shall be called
if any such request is received less than 90 days before the date fixed for the
next ensuing annual or special meeting of stockholders.
(v) The Company shall not, without the affirmative vote or consent of
the holders of at least 66 2/3% of the shares of Convertible Preferred Stock
then outstanding (with shares held by the Company not being considered to be
outstanding for this purpose) voting or consenting as the case may be, as one
class:
(a) amend or otherwise alter this Certificate of
Designations (including the provisions of Section 7
hereof) in any manner, either directly or indirectly,
including, without limitation, through merger or
consolidation with another entity, that adversely
affects the specified rights, preferences, privileges
or voting rights of holders of
<PAGE>
Convertible Preferred Stock; provided that no merger or
--------
consolidation pursuant to which the Convertible
Preferred Stock is converted into or exchanged for
securities or assets that are the same as the holders
of Convertible Preferred Stock would have received had
they converted such Convertible Preferred Stock
immediately prior thereto (whether or not such
conversion was then permitted pursuant to the proviso
to the first sentence of paragraph 2(i) hereof) shall
be deemed to have adversely affected the specified
rights, preferences, privileges or voting rights of the
holders of Convertible Preferred Stock;
(b) alter the voting rights with respect to the Convertible
Preferred Stock or reduce the number of shares of
Convertible Preferred Stock whose holders must consent
to an amendment, supplement or waiver;
(c) reduce the liquidation preference of or alter the
number of shares of Common Stock issuable upon
redemption of the Convertible Preferred Stock in
accordance with the second sentence of Section 5(i)
hereof;
(d) reduce the rate of or change the time for payment of
dividends on any share of Convertible Preferred Stock;
(e) waive the consequences of any failure to pay dividends
on the Convertible Preferred Stock;
(f) make any share of Convertible Preferred Stock payable
in any form other than that stated in this Certificate
of Designations;
<PAGE>
(g) make any change in the provisions of this Certificate
of Designations relating to waivers of the rights of
holders of Convertible Preferred Stock to receive the
liquidation preference and dividends on the Convertible
Preferred Stock; or
(h) make any change in the foregoing amendment and waiver
provisions.
(vi) The Company in its sole discretion may without the vote or
consent of any holders of the Convertible Preferred Stock amend or supplement
this Certificate of Designations:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Convertible Preferred
Stock in addition to or in place of certificated
Convertible Preferred Stock; or
(c) to make any change that would provide any additional
rights or benefits to the holders of the Convertible
Preferred Stock or that does not adversely affect the
legal rights under this Certificate of Designations of
any such holder.
(vii) The consent of the holders of the Convertible Preferred Stock
will not be required for the Company to increase or decrease the amount of
authorized capital stock of any class, including any preferred stock, and such
increase or decrease in the amount of such authorized capital stock shall not be
deemed to affect adversely the rights, preferences, privileges, special rights
or voting rights of holders of shares of Convertible Preferred Stock.
8. Exclusion of Other Rights. Except as may otherwise be required
-------------------------
by law, the shares of Convertible Preferred Stock shall not have any voting
powers, preferences and relative, participating, optional or other
<PAGE>
special rights, other than those specifically set forth in this resolution (as
such resolution may be amended from time to time) and in the Certificate of
Incorporation. The shares of Convertible Preferred Stock shall have no
preemptive or subscription rights.
9. Headings of Subdivisions. The headings of the various
------------------------
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
10. Severability of Provisions. If any voting powers, preferences
--------------------------
and relative, participating, optional and other special rights of the
Convertible Preferred Stock and qualifications, limitations and restrictions
thereof set forth in this Certificate of Designations (as such Certificate of
Designations may be amended from time to time) is invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
voting powers, preferences and relative, participating, optional and other
special rights of Convertible Preferred Stock and qualifications, limitations
and restrictions thereof set forth in this Certificate of Designations (as so
amended) which can be given effect without the invalid, unlawful or
unenforceable voting powers, preferences and relative, participating, optional
or other special rights of Convertible Preferred Stock and qualifications,
limitations and restrictions thereof shall, nevertheless, remain in full force
and effect, and no voting powers, preferences and relative, participating,
optional or other special rights of Convertible Preferred Stock and
qualifications, limitations and restrictions thereof herein set forth shall be
deemed dependent upon any other such voting powers, preferences and relative,
participating, optional or other special rights of Convertible Preferred Stock
and qualifications, limitations and restrictions thereof unless so expressed
herein.
11. Re-issuance of Convertible Preferred Stock. Shares of Convertible
------------------------------------------
Preferred Stock that have been issued and reacquired in any manner, including
shares purchased or redeemed or exchanged or converted, shall (upon compliance
with any applicable provisions of the laws of Delaware) have the status of
authorized but unissued shares of preferred stock of the Company undesignated as
to series and may be designated or re-designated and issued or reissued, as the
case may be, as part of any series of
<PAGE>
preferred stock of the Company; provided, that any issuance of such shares as
--------
Convertible Preferred Stock must be in compliance with the terms hereof.
12. Mutilated or Missing Preferred Stock Certificates. If any of the
-------------------------------------------------
Convertible Preferred Stock certificates shall be mutilated, lost, stolen or
destroyed, the Company shall issue, in exchange and in substitution for and upon
cancellation of the mutilated Convertible Preferred Stock certificate, or in
lieu of and substitution for the Convertible Preferred Stock certificate lost,
stolen or destroyed, a new Convertible Preferred Stock certificate of like tenor
and representing an equivalent amount of shares of Convertible Preferred Stock,
but only upon receipt of evidence of such loss, theft or destruction of such
Convertible Preferred Stock certificate and indemnity, if requested,
satisfactory to the Company and the transfer agent (if other than the Company).
13. Certain Definitions. As used in this Certificate of
-------------------
Designations, the following terms shall have the following meanings (with terms
defined in the singular having comparable meanings when used in the plural and
vice versa), unless the context otherwise requires:
"Business Day" means any day except a Saturday, a Sunday, or any day on
------------
which banking institutions in New York, New York are required or authorized by
law or other governmental action to be closed.
"Closing Price" means, for any Trading Day, the closing bid price for the
-------------
Common Stock on the Nasdaq Stock Market or, if the Common Stock is not quoted on
the Nasdaq Stock Market, the closing bid price in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose.
"Commission" means the Securities and Exchange Commission.
----------
"Common Stock" means the common stock, par value $0.01 per share, of the
------------
Company.
"Conversion Price" shall initially mean $6.00 per share of Convertible
----------------
Preferred Stock and thereafter shall be subject to adjustment from time to time
pursuant to the
<PAGE>
terms of the second paragraph of Section 2(i) hereof and Section 3 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Investment Agreement" means the Investment Agreement, dated as of April 7,
--------------------
1999, between the Company and Apollo Investment Fund, L.P.
"Market Price", per share of Common Stock, on any date, shall mean the
------------
previous Trading Day's Closing Price.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint stock company, trust, limited liability company,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Trading Day" means any day on which the Nasdaq Stock Market or other
-----------
applicable stock exchange or market is open for business.
IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed by, Richard H. Wiley, Chief Financial Officer of the Company, and
attested by Steve Armstrong, Assistant Secretary of the Company, this 9th day of
April, 1999.
SAMSONITE CORPORATION
By: /s/ RICHARD H. WILEY
------------------------------
Name: Richard H. Wiley
Title: Chief Financial Officer
ATTEST:
By: /s/ STEVE ARMSTRONG
---------------------------
Name: Steve Armstrong
Title: Assistant Secretary
xix
<PAGE>
EXHIBIT B
===============================================
REGISTRATION RIGHTS AGREEMENT
between
SAMSONITE CORPORATION
and
APOLLO INVESTMENT FUND, L.P.
___________________
Dated as of April 7, 1999
===============================================
ii
<PAGE>
TABLE OF CONTENTS
1. Certain Definitions................................... 1
2. Demand Registrations.................................. 2
(a) Right to Request Registration................... 2
(b) Number of Demand Registrations.................. 3
(c) Priority on Demand Registrations................ 3
(d) Restrictions on Demand Registrations............ 4
(e) Selection of Underwriters....................... 4
(f) Other Registration Rights....................... 5
(g) Pre-emption of Demand Registration.............. 5
(h) Effective Period of Demand Registrations........ 6
3. Piggyback Registrations............................... 6
(a) Right to Piggyback.............................. 6
(b) Priority on Primary Registrations............... 7
(c) Priority on Secondary Registrations............. 7
(d) Selection of Underwriters....................... 8
(e) Other Registrations............................. 8
4. Holdback Agreements................................... 8
5. Registration Procedures............................... 9
6. Registration Expenses................................. 13
7. Indemnification....................................... 14
8. Participation in Underwritten Registrations........... 17
9. Rule 144.............................................. 17
10. Miscellaneous........................................ 17
(a) No Inconsistent Agreements...................... 17
(b) Remedies........................................ 17
(c) Amendments and Waivers.......................... 18
(d) Successors and Assigns.......................... 18
(e) Severability.................................... 18
(f) Counterparts.................................... 18
(g) Descriptive Headings............................ 18
(h) Governing Law................................... 18
(i) Notices......................................... 18
iii
<PAGE>
REGISTRATION RIGHTS AGREEMENT dated as of April 7, 1999, between Samsonite
Corporation, a Delaware corporation (the "Company"), and Apollo Investment Fund,
L.P., a Delaware limited partnership ("Apollo").
In consideration of the mutual covenants and agreements herein contained
and other good and valid consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the following
terms shall have the following meanings:
"Agreement" means this Registration Rights Agreement, including all
---------
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day" means any day on which commercial banks are open for
------------
business in New York, New York.
"Common Stock" means the Company's common stock, par value $0.01 per share.
------------
"Convertible Preferred Stock" means the Company's Series Z Convertible
---------------------------
Preferred Stock, par value $0.01 per share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Holder" means Apollo, its affiliates, accounts managed by Apollo or any
------
such affiliate and any successors or assigns of Apollo, any such affiliate or
any such account who acquires Registrable Common Stock, directly or indirectly,
from Apollo, such affiliate, such account or such transferee or assignee. For
purposes of this Agreement, the Company may deem and treat the registered holder
of Registrable Common Stock as the Holder and absolute owner thereof, and the
Company shall not be affected by any notice to the contrary.
<PAGE>
"Person" means an individual, partnership, corporation, trust, limited
------
liability company, or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus or prospectuses included in any
----------
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Stock covered by such Registration Statement and by all other amendments
and supplements in the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Registrable Common Stock" means (a) any of the Common Stock or (b) any of
------------------------
the Convertible Preferred Stock, in each case, held by the Holders from time to
time as to which registration pursuant to the Securities Act is required for a
public sale, including, in the case of Convertible Preferred Stock, the Common
Stock issued or issuable upon conversion of the Convertible Preferred Stock.
"Registration Statement" means any registration statement of the Company
----------------------
which covers any of the Registrable Common Stock pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all materials incorporated by reference in such Registration Statement.
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"underwritten registration or underwritten offering" means a registration
--------------------------------------------------
in which securities of the Company are sold to underwriters for reoffering to
the public.
2. Demand Registrations.
(a) Right to Request Registration. Any time after the date of this
-----------------------------
Agreement, Apollo, its affiliates or any Person designated by Apollo or its
affiliates (so long as the Person making such demand is a Holder of Registrable
Common Stock) may request registration under the Securities Act of
<PAGE>
all or part of the Registrable Common Stock ("Demand Registrations").
Within 10 days after receipt of any such request for Demand Registration,
the Company shall give written notice of such request to all other Holders of
Registrable Common Stock and shall, subject to the provisions of Section 2(d)
hereof, include in such registration all such Registrable Common Stock with
respect to which the Company has received written requests for inclusion therein
within 15 days after the receipt of the Company's notice.
For purposes of determining the number of shares of Registrable Common
stock held by a Holder, for purposes of this Agreement but not for any other
purpose, any holder of record of such Convertible Preferred Stock shall be
deemed to be a Holder of the number of shares of Common Stock issuable upon
conversion of such Convertible Preferred Stock.
(b) Number of Demand Registrations. Subject to the provisions of Section
------------------------------
2(a), the Holders of Registrable Common Stock shall be entitled to request an
aggregate of three Demand Registrations; provided the Holders shall not be
--------
entitled to request more than one Demand Registration during any 12-month
period. A registration shall not count as one of the permitted Demand
Registration (i) until it has become effective, (ii) if the Holders initiating
the request for such registration are not able to register and sell at least 50%
of the Registrable Common Stock requested by such Holders to be included in such
registration or (iii) in the case of a Demand Registration that would be the
last permitted Demand Registration requested hereunder, if the Holders
requesting such registration are not able to register and sell all of the
Registrable Common Stock requested to be included by such Holders in such
registration.
(c) Priority on Demand Registrations. Except as provided in Section
--------------------------------
2(g), the Company shall not include in any Demand Registration any securities
which are not Registrable Common Stock without the written consent of the
Holders of a majority of the shares of Registrable Common Stock to be included
in such registration, or, if such Demand Registration is an underwritten
offering, without the written consent of the managing underwriters. If the
managing underwriters of the requested Demand Registration advise the Company in
writing that in their opinion the number of
<PAGE>
shares of Registrable Common Stock proposed to be included in any such
registration exceeds the number of securities which can be sold in such
offering, the Company shall include in such registration only the number of
shares of Registrable Common Stock which in the opinion of such managing
underwriters can be sold. If the number of shares which can be sold is less than
the number of shares of Registrable Common Stock proposed to be registered, the
amount of Registrable Common Stock to be so sold shall be allocated pro rata
among the Holders of Registrable Common Stock desiring to participate in such
registration on the basis of the amount of such Registrable Common Stock
initially proposed to be registered by such Holders. If the number of shares
which can be sold exceeds the number of shares of Registrable Common Stock
proposed to be sold, such excess shall be allocated pro rata among the other
holders of securities, if any, desiring to participate in such registration
based on the amount of such securities initially requested to be registered by
such holders.
(d) Restrictions on Demand Registrations. The Company shall not be
------------------------------------
obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration or a previous registration
under which the Holders had piggyback rights pursuant to Section 3 hereof
(irrespective of whether such rights were exercised). The Company may (i)
postpone for up to six months the filing or the effectiveness of a registration
statement for a Demand Registration if, based on the good faith judgment of the
Company's Board of Directors, such postponement or withdrawal is necessary in
order to avoid premature disclosure of a matter the Board has determined would
not be in the best interest of the Company to be disclosed at such time or (ii)
postpone the filing of a Demand Registration in the event the Company shall be
required to prepare audited financial statements as of a date other than its
fiscal year end (unless the stockholders requesting such registration agree to
pay the expenses of such an audit); provided, however, that in no event shall
--------
the Company withdraw a registration statement under clause (i) after such
registration statement has been declared effective; and provided, further,
--------
however, that in any of the events described in clause (i) or (ii) above, the
Holders initiating the request for such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations. The
Company shall provide written notice to
4
<PAGE>
the Holders of Registrable Common Stock initiating the request for such Demand
Registration of (x) any postponement or withdrawal of the filing or
effectiveness of a registration statement pursuant to this paragraph (d), (y)
the Company's decision to file or seek effectiveness of such registration
statement following such withdrawal or postponement and (z) the effectiveness
of such registration statement.
(e) Selection of Underwriters. If any of the Registrable Common Stock
-------------------------
covered by a Demand Registration are to be sold in an underwritten offering, the
Company shall have the right to select the managing underwriter(s) to
administer the offering.
(f) Other Registration Rights. The Company shall not grant to any Person
-------------------------
the right, other than as set forth herein and except to employees of the Company
with respect to registrations on Form S-8 (or any successor forms thereto), to
request the Company to register any securities of the Company except such rights
as are not more favorable than or inconsistent with the rights granted to the
Holders herein, without the written consent of the Holders of a majority of the
number of shares of Registrable Common Stock then outstanding.
(g) Pre-emption of Demand Registration. Notwithstanding anything to the
----------------------------------
contrary contained herein, if at any time a Holder shall request a Demand
Registration pursuant to this Section 2, the Company may elect at that time to
effect an underwritten primary registration if, based on the good faith judgment
of the Company's Board of Directors, it would be in the best interests of the
Company to access the public market to raise equity capital in order to (i)
finance an acquisition that is the subject of a letter intent or acquisition
agreement at the time of such request for a Demand Registration or (ii)
deleverage the Company to deal with potential covenant or other defaults under
any material contract. If the Company elects to effect a primary registration
after receiving such a request for a Demand Registration, the Company will give
prompt written notice (and in any event within 45 days after receiving such a
request for a Demand Registration) to all Holders of its intention to effect
such a registration and shall afford the Holders rights to Piggyback
Registrations contained in Section 3 hereof, except that if the managing
underwriters of such offering advise the Company in writing
5
<PAGE>
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the
provisions of Section 3(b) hereof shall not apply to such offering, and instead
the Company shall include in such registration the maximum number of securities
which such underwriters advise can be sold in such offering allocated (x) first,
equally among the Company, on the one hand, and the Holders as a group, on the
other hand (allocated among such Holders pro rata on the basis of the number of
shares requested to be registered by such Holders), so as to include in such
registration up to the full number of securities requested to be included
therein by each of the Company and the Holders, (y) second, if the number of
shares included therein pursuant to the foregoing clause (x) equals the total
number of shares requested to be included therein by the Holders as a group or
the Company, such additional number of shares requested to be included therein
by the Company or the Holders (allocated among such holders pro rata on the
basis of the number of shares requested to be registered by such holders),
respectively, and (z) third, other securities requested to be included in such
registration pro rata among the holders of such securities on the basis of the
number of shares re quested to be registered by such holders. In the event that
the Company so elects to effect such a primary registration after receiving a
request for such a Demand Registration, such registration shall not count as one
of the permitted Demand Registrations of the Holders who requested such
registration.
(h) Effective Period of Demand Registrations. After any Demand
----------------------------------------
Registration filed pursuant to this Agreement has become effective, the Company
shall use its best efforts to keep such Demand Registration effective for a
period equal to 90 days from the date on which the SEC declares such Demand
Registration effective (or if such Demand Registration is not effective during
any period within such 90 days, such 90-day period shall be extended by the
number of days during such period when such Demand Registration is not
effective), or such shorter period which shall terminate when all of the
Registrable Common Stock covered by such Demand Registration has been sold
pursuant to such Demand Registration. If the Company shall withdraw any Demand
Registration pursuant to subsection (d) of this Section 2 (a "Withdrawn Demand
Registration"), the Holders of the Registrable Common Stock remaining unsold and
originally covered by such Withdrawn Demand Registration shall be
6
<PAGE>
entitled to a replacement Demand Registration which (subject to the provisions
of this Section 2) the Company shall use its best efforts to keep effective for
a period commencing on the effective date of such Demand Registration and ending
on the earlier to occur of the date (i) which is 90 days from the effective date
of such Demand Registration and (ii) on which all of the Registrable Common
Stock covered by such Demand Registration has been sold. Such additional Demand
Registration otherwise shall be subject to all of the provisions of this
Agreement.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
------------------
its equity securities (other than Registrable Common Stock) under the Securities
Act (other than a registration statement on Form S-8 or on Form S-4 or any
successor forms thereto), whether for its own account or for the account of one
or more securityholders of the Company, and the registration form to be used may
be used for any registration of Registrable Common Stock (a "Piggyback
Registration"), the Company shall give prompt written notice (in any event
within 10 business days after its receipt of notice of any exercise of other
demand registration rights) to all Holders of its intention to effect such a
registration and, subject to Sections 3(b) and 3(c), shall include in such
registration all Registrable Common Stock with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice. The Company may postpone or withdraw the filing or the
effectiveness of a Piggyback Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
---------------------------------
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Common Stock pro rata among the Holders of such
Registrable Common Stock on the basis of the number of shares requested to be
registered by such Holders, and (iii) third, other securities requested to be
included in such registration pro rata among the holders of such securities
7
<PAGE>
on the basis of the number of shares requested to be registered by such holders.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
-----------------------------------
an underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Common Stock, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company shall include in such registration (i)
first the securities requested to be included therein by the holders requesting
such registration and the Registrable Common Stock requested to be included in
such registration, pro rata among the holders of such securities on the basis of
the number of shares requested to be registered by such holders, and (ii)
second, other securities requested to be included in such registration pro rata
among the holders of such securities on the basis of the number of shares
requested to be registered by such holders.
(d) Selection of Underwriters. If any Piggyback Registration is an
-------------------------
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
-------------------
registration statement with respect to Registrable Common Stock pursuant to
Section 2 hereof or pursuant to this Section 3, and if such previous
registration has not been withdrawn or abandoned, the Company shall not be
obligated to cause to become effective any other registration of any of its
securities under the Securities Act, whether on its own behalf or at the request
of any holder or holders of such securities, until a period of at least three
months has elapsed from the effective date of such previous registration.
4. Holdback Agreements.
(a) Each Holder agrees not to offer, sell, contract to sell or otherwise
dispose of any shares of Common Stock, shares of Convertible Preferred Stock or
any securities that represent the right to receive shares of Common Stock or
Convertible Preferred Stock during the 10 days prior to and the 90 days
beginning on the effective date of any underwritten primary or secondary
offering of equity securities
8
<PAGE>
of the Company (including, but not limited to, any underwritten Demand
Registration or any underwritten Piggyback Registration whether or not shares of
Registrable Common Stock are included (except as part of such underwritten
registration)) unless the underwriters managing the offering otherwise agree, in
each case to the extent timely notified of such offering in writing by the
Company or by the managing underwriter or underwriters. The Company and the
Holders agree that the provisions of this Section 4(a) shall be enforceable by
such underwriter(s) against any Holder, it being understood that such
underwriter(s) are intended third party beneficiaries hereof and, if so
requested by such underwriter(s), each Holder agrees to execute and deliver to
such underwriter(s) such agreements and instruments, in form and substance
reasonably satisfactory to such underwriter(s), further evidencing such
Holder's agreement not to sell such securities during such period.
The foregoing paragraph shall not apply to (i) any Holder to the extent
such Holder is prohibited by applicable law from agreeing to withhold its
securities from sale, (ii) any transfer by a Holder to an affiliate of such
Holder or to any other transferee in a private transaction not requiring
registration under the Securities Act provided, that such affiliate or other
--------
transferee acknowledges in writing that it is bound by the provisions of this
Section 4(a) or (iii) any Holder, with respect to any offering, if such Holder,
immediately prior to the effective date of such offering, beneficially owns
together with all of its affiliates less than 3.0% of the amount of Common Stock
(including shares of Common Stock issuable upon conversion of the Convertible
Preferred Stock) being sold in such offering.
(b) Subject to Section 2(g) hereof, the Company agrees not to effect any
registration with respect to any public offer, sale or distribution of any of
its equity securities during the 10 days prior to and during the 90 days
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or S-4 or any successor
forms thereto) unless the underwriters managing the registered public offering
otherwise agree.
5. Registration Procedures.
9
<PAGE>
Whenever the Holders request that any Registrable Common Stock be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Common Stock in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect to
such Registrable Common Stock and use its best efforts to cause such
Registration Statement to become effective as soon as practicable thereafter;
and before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, furnish to the Holders of Registrable Common Stock covered
by such Registration Statement and the underwriter or underwriters, if any,
copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by such Holders,
the exhibits incorporated by reference, and such Holders shall have the
opportunity to object to any information pertaining solely to such Holders that
is contained therein and the Company will make the corrections reasonably
requested by such Holders with respect to such information prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep such Registration Statement effective for a period of not
less than 90 days, in the case of a Demand Registration, or such shorter period
as is necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Stock such number of
copies of such Registration Statement, each amendment and supplement thereto,
the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Common Stock
owned by such seller;
10
<PAGE>
(d) use its best efforts to register or qualify such Registrable Common
Stock under such other securities or blue sky laws of such jurisdictions as any
seller reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Common Stock owned by such
seller (provided, that the Company will not be required to (i) qualify generally
--------
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph (d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Common Stock, at any time when
a Prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any event as a result of which the prospectus included
in such Registration Statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such Prospectus so that, as thereafter delivered to the purchasers
of such Registrable Common Stock, such Prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) in the case of an underwritten offering, enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the Holders of a majority of number of shares of the
Registrable Common Stock being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Common Stock (including, without limitation, effecting a stock split or a
combination of shares and using its best efforts to cause members of management
of the Company to participate on a reasonable basis in customary "road-show"
activities to the extent required by the underwriters consistent with the
Company's most recent experience in connection with an offering of its equity
securities and with a view to maximizing the price of the Common Stock sold in
such offering) and cause to be delivered to the underwriters and the sellers, if
any, opinions of counsel to the Company in customary form, covering such matters
as are customarily covered by opinions for an underwritten public offering as
11
<PAGE>
the underwriters may request and addressed to the underwriters and the sellers;
(g) make available, for inspection by any seller of Registrable Common
Stock, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
(h) use its best efforts to cause all such Registrable Common Stock to be
listed on each securities exchange on which securities of the same class issued
by the Company are then listed or, if no such similar securities are then
listed, on the Nasdaq Stock Market or a national securities exchange selected by
the Company;
(i) provide a transfer agent and registrar for all such Registrable Common
Stock not later than the effective date of such Registration Statement;
(j) cause to be delivered, immediately prior to the effectiveness of the
Registration Statement (and, in the case of an underwritten offering, at the
time of delivery of any Registrable Common Stock sold pursuant thereto), letters
from the Company's independent certified public accountants addressed to each
selling Holder and each underwriter, if any, stating that such accountants are
independent public accountants within the meaning of the Securities Act and the
applicable rules and regulations adopted by the SEC thereunder, and otherwise in
customary form and covering such financial and accounting matters as are
customarily covered by letters of the independent certified public accountants
delivered in connection with primary or secondary underwritten public offerings,
as the case may be;
(k) make generally available to the Holders a consolidated earnings
statement (which need not be audited) for the 12 months beginning after the
effective date of a registration statement as soon as reasonably practicable
after the end of such period, which earnings statement shall satisfy
12
<PAGE>
the requirements of an earning statement under Section 11(a) of the Securities
Act;
(l) promptly notify each seller of Registrable Common Stock and the
underwriter or underwriters, if any:
(i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement has been filed and, with respect to
the Registration Statement or any post-effective amendment, when the same
has become effective;
(ii) of any written request by the SEC for amendments or
supplements to the Registration Statement or Prospectus;
(iii) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement;
and
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable Common
Stock for sale under the applicable securities or blue sky laws of any
jurisdiction.
At all times after the Company has filed a registration statement with the
SEC pursuant to the requirements of either the Securities Act or the Exchange
Act, the Company shall file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, and take such further action as any Holder or Holders may
reasonably request, all to the extent required to enable such Holders to be
eligible to sell Registrable Common Stock pursuant to Rule 144 (or any similar
rule then in effect).
The Company may require each seller of Registrable Common Stock as to which
any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
13
<PAGE>
Each seller of Registrable Common Stock agrees by having its stock treated
as Registrable Common Stock hereunder that, upon notice of the happening of
any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, such seller will
forthwith discontinue disposition of Registrable Common Stock until such seller
is advised in writing by the Company that the use of the Prospectus may be
resumed and is furnished with a supplemented or amended Prospectus as
contemplated by Section 5(e) hereof, and, if so directed by the Company, such
seller will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such seller's possession, of the
Prospectus covering such Registrable Common Stock current at the time of receipt
of such notice. If the Company shall give any notice to suspend the
disposition of Registrable Common Stock pursuant to a Prospectus, the Company
shall extend the period of time during which the Company is required to maintain
the Registration Statement effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such notice
to and including the date such seller either is advised by the Company that the
use of the Prospectus may be resumed or receives the copies of the supplemented
or amended Prospectus contemplated by Section 5(e).
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent's and registrar's fees, cost
of distributing prospectuses in preliminary and final form as well as any
supple ments thereto, and fees and disbursements of counsel for the Company and
all independent certified public accountants and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses") (but not
including any underwriting discounts or commissions attributable to the sale
of Registrable Common Stock or fees and expenses of more than one counsel
representing the Holders of Registrable Common Stock or any other selling
expenses incurred in connection with the sale of Registrable Common Stock),
shall be borne by the Company. In addition, the Company shall pay its internal
expenses (including, without
14
<PAGE>
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
they are to be listed.
(b) In connection with each registration initiated hereunder (whether a
Demand Registration or a Piggyback Registration), the Company shall reimburse
the Holders covered by such registration or sale for the reasonable fees and
disbursements of one law firm chosen by the Holders of a majority of the number
of shares of Registrable Common Stock included in such registration or sale.
(c) The obligation of the Company to bear the expenses described in
Section 6(a) and to reimburse the Holders for the expenses described in Section
6(b) shall apply irrespective of whether a registration, once properly
demanded, if applicable, becomes effective, is withdrawn or suspended, is
converted to another form of registration and irrespective of when any of the
foregoing shall occur; provided, however, that Registration Expenses for any
--------
registration statement withdrawn solely at the request of a Holder of
Registrable Common Stock (unless withdrawn following postponement of filing by
the Company in accordance with Section 2(e)(i) or (ii)) or any supplements or
amendments to a registration statement or prospectus resulting from a
misstatement furnished to the Company by a Holder shall be borne by such
Holder.
7. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent permitted by
law, each Holder, its officers, directors and affiliates and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Holder expressly for use
therein or by such Holder's failure to deliver a copy of the
15
<PAGE>
Registration Statement or Prospectus or any amendments or supplements thereto
after the Company has furnished such Holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
(b) In connection with any Registration Statement in which a Holder of
Registrable Common Stock is participating, each such Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the Registration Statement, Prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such Holder expressly for use in the Registration
Statement; provided, however, that the obligation to indemnify shall be several,
--------
not joint and several, among such Holders and the liability of each such Holder
shall be in proportion to and limited to the net amount received by such Holder
from the sale of Registrable Common Stock pursuant to such Registration
Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or
16
<PAGE>
elects not to, assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim. Failure to give prompt written notice shall not release the indemni fying
party from its obligations thereunder.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section 7
is due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of
the indemnified party on the other in connection with the statements or
omissions which result in such losses, claims, damages, liabilities or expenses
as well as any other relevant equitable considerations. The relative fault of
the indemnifying party on the one hand and of the indemnified person on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and by such party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. In no event shall the liability of any selling
Holder be greater in amount than the amount of net proceeds received by such
Holder upon such sale or the amount for which such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under Section 7(a) or 7(b) hereof had been available under the
circumstances.
17
<PAGE>
8. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
9. Rule 144.
The Company covenants that 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 SEC thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any holder of Registrable Common Stock,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will take such further action as
any Holder may reasonably request, to the extent required to enable such Holder
to sell Registrable Common Stock without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such information and requirements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement.
(b) Remedies. The parties agree and acknowledge that the rights granted
--------
to the parties hereunder are valuable and unique and that any Person having
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without the posting of any bond or other security), to
recover damages caused by reason of any breach
18
<PAGE>
of any provision of this Agreement and to exercise all other rights granted by
law.
(c) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of Holders
of a majority of the number of shares of Registrable Common Stock then
outstanding; provided, however, that if such prohibited action or omission does
--------
not adversely affect the rights of all of the Holders, the Company shall not be
required to obtain the consent of any such Holder not adversely affected
thereby.
(d) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including any Person to whom Registrable Common Stock are transferred) and all
of the Holders whether so expressed or not.
(e) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
------------
counterparts, each of which shall constitute an original, but both of which
taken together shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without giving effect to
conflict of laws rules.
(i) Notices. All notices, demands or other communications to be given
-------
or delivered under or by reason of the
19
<PAGE>
provisions of this Agreement shall be in writing and shall be deemed to have
been given (i) when delivered personally or by overnight courier or similar
courier to the recipient, (ii) by facsimile transmission (receipt of which is
confirmed) or (iii) three business days after being mailed by certified or
registered mail, return receipt requested and postage prepaid, properly
addressed, to the recipient. Such notices, demands and other communications
shall be sent as follows:
(1) If to the Company:
Samsonite Corporation
11200 East 45th Avenue
Denver, CO 80239
Attention: General Counsel
Facsimile No.: (303) 373-6406
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Gregory A. Fernicola, Esq.
Facsimile No.: (212) 735-2000
(2) If to Apollo:
Apollo Advisors, L.P.
2 Manhattanville Road
Purchase, New York 10577
Facsimile No.: (212) 261-4070
(3) If to any other Holder:
at the address or facsimile number indicated on the books of the
Company
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
20
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective
as of April 7, 1999.
SAMSONITE CORPORATION
By: Steve Armstrong
----------------
Name: Steve Armstrong
Title: General Counsel
APOLLO INVESTMENT FUND, L.P.
By: Apollo Advisors, L.P.,
Its General Partner
By: Apollo Capital Management, Inc.,
Its General Partner
By: Robert H. Falk
---------------
Name: Robert H. Falk
Title: Vice President
22
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>5
<DESCRIPTION>CERTIFICATE OF DESIGNATIONS FOR SERIES Z STOCK
<TEXT>
<PAGE>
Exhibit 10.3
CERTIFICATE OF THE DESIGNATIONS,
POWERS, PREFERENCES AND RIGHTS
OF
SERIES Z CONVERTIBLE PREFERRED STOCK
OF
SAMSONITE CORPORATION
________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
________________________
Samsonite Corporation, a Delaware corporation (the "Company"),
certifies that pursuant to the authority contained in Article IV of its Restated
Certificate of Incorporation, as amended (the "Certificate of Incorporation"),
and in accordance with the provisions of Section 151 of the General Corporation
Law of the State of Delaware, the Board of Directors of the Company at a meeting
duly called and held on April 7, 1999, duly approved and adopted the following
resolution which resolution remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Certificate of Incorporation, the Board of Directors does
hereby designate, create, authorize and provide for the issue of a series of
preferred stock having a par value of $0.01 per share, which shall be designated
as "Series Z Convertible Preferred Stock" (the "Convertible Preferred Stock")
consisting of 2,000 shares, having the following powers, preferences and rights,
and qualifications, limitations and restrictions thereof, as follows (certain
capitalized terms used herein are defined in Section 13 hereof):
<PAGE>
1. Dividends.
---------
(i) Holders of shares of the Convertible Preferred Stock shall be entitled
to receive, when, as and if dividends are declared by the Board of Directors out
of funds of the Company legally available therefor, if such shares of
Convertible Preferred Stock are held of record at the close of business on any
record date (each, a "Record Date") with respect to payment of dividends on the
Common Stock, the amount of dividends as set forth below. The amount of
dividends payable in respect of each share of Convertible Preferred Stock shall
be equal to the result obtained by multiplying (a) the number of shares
(including fractions) of Common Stock into which such share of Convertible
Preferred Stock is (or, but for the proviso to the first sentence of Section
2(i) below, would be) convertible on the Record Date by (b) the amount of
dividends declared and paid on each share of Common Stock; provided, however,
-------- -------
that if the Company declares and pays a dividend on the Common Stock consisting
in whole or in part of Common Stock, then no such dividend shall be payable in
respect of the Convertible Preferred Stock on account of the portion of such
dividend on the Common Stock payable in Common Stock and in lieu thereof the
anti-dilution adjustment in Section 3(i) below shall apply and; provided
--------
further, that holders of shares of Convertible Preferred Stock shall not be
-------
entitled to receive, and shall not participate in the distribution of, the
transferable subscription rights to be distributed to holders of the Company's
Common Stock in connection with the Company's proposed rights offering referred
to in the Investment Agreement (the "Rights Offering"). No dividend shall be
paid or declared on any share of Common Stock (other than dividends payable in
Common Stock and other than pursuant to the Rights Offering), unless a dividend,
payable in the same consideration and manner, is simultaneously paid or
declared, as the case may be, on each share of Convertible Preferred Stock in an
amount determined as set forth above. For purposes hereof, the term "dividends"
shall include any pro rata distribution by the Company, out of funds of the
--- ----
Company legally available therefor, of cash, property, securities (including,
but not limited to, rights, warrants or options) or other property or assets to
the holders of the Common Stock, whether or not paid out of capital, surplus or
earnings.
(ii) Notwithstanding the foregoing, if dividends are declared in respect
of the Common Stock that are payable in rights, options, warrants or other
convertible or
2
<PAGE>
exchangeable securities (collectively, "Rights") that entitle the holders
thereof to acquire shares of Common Stock (other than pursuant to the Rights
Offering), the dividends payable in respect of the Convertible Preferred Stock
shall consist of substantially identical Rights that instead are convertible
into or exercisable or exchangeable for (as the case may be) shares of
convertible preferred stock that have substantially identical terms and
provisions (determined by the Company in good faith) as the Convertible
Preferred Stock (the "New Convertible Preferred Stock") and the amount of such
dividend payable in respect of each share of Convertible Preferred Stock shall
be such that the number of shares of New Convertible Preferred Stock (and/or
fraction(s) thereof) into which or for which such Rights are convertible,
exchangeable or exercisable shall equal that number of shares of New Convertible
Preferred Stock which, if fully converted, would be convertible into the number
of shares of Common Stock into which or for which the Rights would have been
convertible, exchangeable or exercisable had such dividend been payable to the
holders of the Convertible Preferred Stock in accordance with paragraph (i)
above without regard to this paragraph, and the conversion price, exercise price
and/or exchange rate thereof shall be determined in a similar manner (determined
by the Company in good faith).
(iii) Prior to declaring any dividend on shares of Common Stock, the
Company shall take all prior corporate action necessary to authorize the
issuance of any securities payable as a dividend in respect of the Convertible
Preferred Stock.
1. Conversion Rights.
-----------------
(i) Each share of Convertible Preferred Stock shall be convertible at any
time, or from time to time, unless previously redeemed by the Company pursuant
to Section 5 hereof, at the option of the holder thereof, into such number of
shares of Common Stock as described below; provided, however, that a holder of
-------- -------
Convertible Preferred Stock may not convert its shares of Convertible Preferred
Stock into shares of Common Stock prior to the later of (x) expiration or
termination of any waiting period (and any extension thereof) under (1) the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act")
and (2) any similar period (as determined by the Company in good faith) under
the regulations and decisions of the Commission of the European Communities ("EC
Rules"), applicable to such holder's acquisition of the Convertible
3
<PAGE>
Preferred Stock, the Common Stock underlying the Convertible Preferred Stock,
the Rights Offering or any of the transactions contemplated thereby, to the
extent that the Company determines in good faith such filing and waiting period
under such EC Rules are in the best interests of the Company and (y) the
completion, termination or abandonment (as determined by the Company in good
faith) of the Rights Offering. The number of shares of Common Stock issuable
upon conversion of each share of Convertible Preferred Stock shall be equal to
the result obtained by dividing (a) $25,410 by (b) the Conversion Price then in
effect and (c) in the case of any fraction of a share of Convertible Preferred
Stock, by multiplying such result by such fraction.
If the Company issues subscription rights in the Rights Offering with a per
share subscription price for Common Stock that is different than the Conversion
Price, the Conversion Price in effect immediately prior to the date of
commencement of the Rights Offering shall automatically be adjusted, effective
as of the date of commencement of the Rights Offering, to equal such per share
subscription price.
(ii) To convert shares of Convertible Preferred Stock, a holder must (A)
surrender the certificate or certificates evidencing such holder's shares of
Convertible Preferred Stock to be converted, duly endorsed in a form
satisfactory to the Company, at the office of the Company or transfer agent for
the Convertible Preferred Stock, if any, (B) notify the Company at such office
that such holder elects to convert Convertible Preferred Stock and the number of
shares such holder wishes to convert, (C) state in writing the name or names in
which such holder wishes the certificate or certificates for shares of Common
Stock to be issued, and (D) pay any transfer or similar tax, if required. Such
notice referred to in clause (B) above shall be delivered substantially in the
following form:
"NOTICE TO EXERCISE CONVERSION RIGHT
The undersigned, being a holder of the Series Z Convertible Preferred Stock
of Samsonite Corporation (the "Convertible Preferred Stock") irrevocably
exercises the right to convert ____________ outstanding shares of Convertible
Preferred Stock on ___________, ____, into shares of Common Stock of Samsonite
Corporation in accordance with the terms of the shares of Convertible Preferred
Stock, and directs that the shares issuable and
4
<PAGE>
deliverable upon the conversion, together with any check in payment for
fractional shares, be issued and delivered in the denominations indicated below
to the registered holder hereof unless a different name has been indicated
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Dated: [At least one Business Day prior to the date fixed for conversion]
Fill in for registration of
shares of Common Stock
if to be issued otherwise
than to the registered
holder:
-------------------------------------
Name
-------------------------------------
Address
------------------ --------------------------
Please print name and (Signature)
address, including postal
code number
Denominations:__________________"
(iii) Shares of the Convertible Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the day of the
surrender of such shares for conversion in accordance with the foregoing
provisions, and the person or persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the conversion date, the Company shall issue and shall deliver at
such office a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with payment in lieu of any
fraction of a share, as hereinafter provided, to the person or persons entitled
to receive the same.
5
<PAGE>
(iv) The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of the Convertible Preferred Stock, the full
number of shares of Common Stock then issuable upon the conversion of all shares
of Convertible Preferred Stock then outstanding and shall take all such action
and obtain all such permits or orders as may be necessary to enable the Company
lawfully to issue such Common Stock upon such conversion.
(v) No fractional shares of Common Stock shall be issued upon conversion,
but, instead of any fraction of a share which would otherwise be issuable, the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the Market Price of such fraction as of the close of business on the
day of conversion.
(vi) The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of the
Convertible Preferred Stock pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Common Stock in a name other than that in
which the shares of Convertible Preferred Stock so converted were registered,
and no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
3. Anti-dilution Adjustments.
-------------------------
(i) If the Company (a) pays a dividend or makes any other distribution on
or in respect of the Common Stock payable in Common Stock, (b) subdivides or
combines its outstanding shares of Common Stock into a greater or smaller number
of shares, or (c) issues or distributes any equity securities by
reclassification of its Common Stock (other than any issuance constituting a
dividend in which the holders of the Convertible Preferred Stock participate in
accordance with Section 1 above), the Conversion Price shall be adjusted as of
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or distribution
or at the opening of business on the day following the day on which such
subdivision, combination or reclassification becomes effective, as the case may
be, so
6
<PAGE>
that the holders of the Convertible Preferred Stock shall, upon surrender
thereafter of any shares of Convertible Preferred Stock for conversion, be
entitled to receive the number of shares of Common Stock that such holder would
have owned or have been entitled to receive after the happening of any of the
events described above had such Convertible Preferred Stock been converted
immediately prior to the record date in the case of a dividend or distribution
or the effective date in the case of a subdivision, combination or
reclassification.
(ii) In the case of any consolidation or merger of the Company with
another entity, as a result of which shares of Common Stock shall be changed
into the same or a different number of shares of the same or another class or
classes of stock or securities of the Company or another entity or any other
property or assets, then the holders of Convertible Preferred Stock shall
thereafter have the right to receive upon surrender thereafter of their shares
of Convertible Preferred Stock for conversion, such shares of common stock
and/or securities and/or other property or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common Stock that
would otherwise have been received by such holders had they converted the
Convertible Preferred Stock immediately prior to the effective date of such
merger or consolidation.
(iii) Upon the occurrence of any event described in paragraphs (i) or (ii)
above, the Company shall promptly mail to each holder of Convertible Preferred
Stock, first class, postage prepaid, a notice which shall describe such event
and the change in the number of shares or other assets or securities issuable
upon conversion of the Convertible Preferred Stock, setting forth in reasonable
detail the method of calculation thereof and the facts upon which such
calculation is based.
(iv) If:
(A) the Company takes any action which would require an adjustment
pursuant to paragraphs (i) or (ii) above;
(B) the Company consolidates or merges with, or transfers all or
substantially all of its assets to, another corporation, and stockholders of the
Company must approve the transaction; or
7
<PAGE>
(C) there is a dissolution or liquidation of the Company;
the Company shall mail to holders of the Convertible Preferred Stock, first
class, postage prepaid, a notice stating the proposed record or effective date,
as the case may be. The Company shall mail the notice at least 10 days before
such date. However, failure to mail the notice or any defect in it shall not
affect the validity of any transaction referred to in clause (A), (B) or (C) of
this paragraph.
4. Liquidation Preference. In the event of any voluntary or involuntary
----------------------
liquidation, winding-up or dissolution of the Company or reduction or decrease
in its capital stock resulting in a distribution of assets to the holders of any
class or series of the Company's capital stock, after there shall have been
paid, or set apart for payment, to the holders of the outstanding shares of any
class having preference over the Convertible Preferred Stock the preferential
amounts as to which they are respectively entitled, the holders of the
Convertible Preferred Stock shall be entitled to share ratably with the holders
of the Common Stock (and all other classes and series of stock entitled to
participate with the Common Stock) in the remaining assets of the Company on the
basis that such holders would share if all outstanding shares of Convertible
Preferred Stock were then converted into Common Stock; provided, that in the
--------
event that such payment would be less than $0.01 per share of Convertible
Preferred Stock, the holders of the Convertible Preferred Stock shall instead be
entitled to receive out of the assets of the Company available for distribution
to its stockholders, whether from capital, surplus or earnings, an amount per
share of Convertible Preferred Stock equal to $0.01 per share (or if less than
$0.01 per share is available for distribution in respect of the Convertible
Preferred Stock, then all such remaining funds shall be distributed pro rata in
--- ----
respect of the Convertible Preferred Stock), before any payment or distribution
shall be made to the holders of the Common Stock (or any other class or series
of stock entitled to participate with the Common Stock). If, upon any
liquidation, winding-up or dissolution of the Company, the assets of the
Company, or proceeds thereof, distributable among the holders of shares of
Convertible Preferred Stock or any capital stock ranking on a parity with the
Convertible Preferred Stock upon liquidation, winding-up or dissolution of the
Company, shall be insufficient to pay in full the preferential amounts to
8
<PAGE>
which such stock would be entitled, then such assets, or the proceeds thereof,
shall be distributable among such holders ratably in accordance with the
respective amounts which would be payable on such shares if all amounts payable
thereon were payable in full. For the purposes hereof, neither a consolidation
nor merger of the Company with one or more other corporations, nor a sale or a
transfer of all or substantially all of the assets of the Company, shall be
deemed to be a liquidation, winding-up or dissolution, voluntary or involuntary,
of the Company.
5. Mandatory Redemption.
--------------------
(i) Subject to prior compliance with the HSR Act, and subject to
compliance with any applicable EC Rules to the extent that the Company
determines in good faith that such compliance is in the best interests of the
Company, the Company may, at its option, redeem the shares of Convertible
Preferred Stock, in whole or in part, at any time subsequent to the completion,
termination or abandonment (as determined by the Company in good faith) of the
Rights Offering, or from time to time thereafter, in exchange for Common Stock.
The number of shares of Common Stock so issuable upon redemption of each share
of Convertible Preferred Stock shall be equal to the result obtained by dividing
(a) $25,410 by (b) the Conversion Price in effect on the Redemption Date (as
defined below) and (c) in the case of any fraction of a share of Convertible
Preferred Stock, by multiplying such result by such fraction.
(ii) At least 10 and not more than 60 days prior to the date fixed for any
redemption (the "Redemption Date"), the Company shall provide written notice by
first class mail, postage prepaid, to each holder of record of the Convertible
Preferred Stock on the record date fixed for such redemption of the Convertible
Preferred Stock at their last address as it shall appear on the books of the
Company; provided, however, that no failure to give such notice or any defect
-------- -------
therein or in the mailing thereof shall affect the validity of the procedure for
the redemption of any shares of Convertible Preferred Stock except as to the
holder to whom the Company has failed to give notice or except as to the holder
to whom notice was defective. In addition to any information required by law or
by the applicable rules of any exchange upon which Convertible Preferred Stock
may be listed or admitted to trading, such notice shall state:
9
<PAGE>
(1) that such redemption is being made pursuant to the mandatory
redemption provisions of Section 5(i) hereof;
(2) the Redemption Date;
(3) the number of shares of Convertible Preferred Stock to be
redeemed and, if less than all shares held by such holder are to be
redeemed, the number of such shares to be redeemed;
(4) the Conversion Price then in effect;
(5) the number of shares of Common Stock to be received by such
holder in exchange for such holder's shares of Convertible Preferred Stock
which are to be redeemed and the method of calculation thereof; and
(6) the place or places where certificates for such shares are to be
surrendered for exchange, including any procedures applicable to
redemptions to be accomplished through book-entry transfers.
Upon the mailing of any such notice of redemption, the Company shall become
obligated to redeem at the time of redemption specified thereon all shares
called for redemption.
(iii) If notice has been mailed in accordance with Section 5(ii) above and
provided, that at all times prior to the Redemption Date specified in such
--------
notice, the Company shall reserve and keep available, free from pre-emptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the redemption of the Convertible Preferred Stock, the full number of
shares of Common Stock issuable upon the exchange of the Convertible Preferred
Stock, then, from and after the Redemption Date, said shares shall no longer be
deemed to be outstanding and shall not have the status of shares of Convertible
Preferred Stock. Upon surrender, in accordance with said notice, of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Company shall so require and the notice shall so state), such
shares shall be redeemed by the Company in exchange for the applicable number of
shares of Common Stock determined in accordance with Section 5(i) above. In
case fewer than all the shares represented by any such certificate are redeemed,
a new certificate or certificates shall be issued
10
<PAGE>
representing the unredeemed shares without cost to the holder thereof.
6. Mandatory Conversion. Subject to prior compliance with the HSR Act,
--------------------
and subject to compliance with any applicable EC Rules to the extent that the
Company determines in good faith that such compliance is in the best interests
of the Company, in the event that, at any time subsequent to the completion,
termination or abandonment (as determined by the Company in good faith) of the
Rights Offering, any holder of Convertible Preferred Stock transfers beneficial
ownership of any of such holder's shares of Convertible Preferred Stock to any
third party not affiliated with such holder, all such shares of Convertible
Preferred Stock so transferred shall be automatically deemed converted into
Common Stock (at the conversion rate set forth in Section 2(i) hereof) upon any
such transfer, without any action on the part of the Company, such holder or the
transferee.
7. Voting Rights.
-------------
(i) The holders of record of shares of the Preferred Stock shall have no
voting rights, except as required by law or by the applicable rules of any
securities exchange or automated quotation system upon which Convertible
Preferred Stock may be listed or admitted to trading and as hereinafter provided
in this Section 7.
(ii) Upon any consolidation, merger, reclassification or similar
transaction, as a result of which:
(a) the Convertible Preferred Stock would be converted into anything
other than the underlying Common Stock into which such Convertible
Preferred Stock would have been converted had such conversion taken place
prior to the effective date of such consolidation, merger, reclassification
or similar transaction or
(b) the terms of the Common Stock underlying the Convertible
Preferred Stock would be amended or altered (each of the events described
in clause (a) above and this clause (b) is referred to herein as a "Voting
Rights Triggering Event"));
then the holders of a majority of the outstanding shares of Convertible
Preferred Stock, voting as a separate single class, shall have the right to
approve any such
11
<PAGE>
consolidation, merger, reclassification or similar transaction.
(iii) Whenever such voting right shall have vested by virtue of a Voting
Rights Triggering Event, such right may be exercised initially either at a
special meeting of the holders of Convertible Preferred Stock, called as
hereinafter provided, or at any annual meeting of stockholders or by the written
consent of the holders of Convertible Preferred Stock.
(iv) At any time when such voting right shall have vested in the holders
of Convertible Preferred Stock and if such right shall not already have been
initially exercised, a proper officer of the Company shall, upon the written
request of holders of record of 10% or more of the Convertible Preferred Stock
then outstanding, addressed to the Secretary of the Company, call a special
meeting of holders of Convertible Preferred Stock. Such meeting shall be held at
the earliest practicable date upon the notice required for annual meetings of
stockholders at the place for holding annual meetings of stockholders of the
Company or, if none, at a place designated by the Secretary of the Company. If
such meeting shall not be called by the proper officers of the Company within 30
days after the personal service of such written request upon the Secretary of
the Company, or within 30 days after mailing the same within the United States,
by registered mail, addressed to the Secretary of the Company at its principal
office (such mailing to be evidenced by the registry receipt issued by the
postal authorities), then the holders of record of 10% of the shares of the
Convertible Preferred Stock then outstanding may designate in writing a holder
of Convertible Preferred Stock to call such meeting at the expense of the
Company, and such meeting may be called by such person so designated upon the
notice required for annual meetings of stockholders and shall be held at the
place for holding annual meetings of the Company or, if none, at a place
designated by such holder. Any holder of Convertible Preferred Stock that would
be entitled to vote at such meeting shall have access to the stock books of the
Company for the purpose of causing a meeting of stockholders to be called
pursuant to the provisions of this Section 7. Notwithstanding the provisions of
this paragraph, however, no such special meeting shall be called if any such
request is received less than 90 days before the date fixed for the next ensuing
annual or special meeting of stockholders.
12
<PAGE>
(v) The Company shall not, without the affirmative vote or consent of the
holders of at least 66 2/3% of the shares of Convertible Preferred Stock then
outstanding (with shares held by the Company not being considered to be
outstanding for this purpose) voting or consenting as the case may be, as one
class:
(a) amend or otherwise alter this Certificate of Designations
(including the provisions of Section 7 hereof) in any manner, either
directly or indirectly, including, without limitation, through merger or
consolidation with another entity, that adversely affects the specified
rights, preferences, privileges or voting rights of holders of Convertible
Preferred Stock; provided that no merger or consolidation pursuant to which
--------
the Convertible Preferred Stock is converted into or exchanged for
securities or assets that are the same as the holders of Convertible
Preferred Stock would have received had they converted such Convertible
Preferred Stock immediately prior thereto (whether or not such conversion
was then permitted pursuant to the proviso to the first sentence of
paragraph 2(i) hereof) shall be deemed to have adversely affected the
specified rights, preferences, privileges or voting rights of the holders
of Convertible Preferred Stock;
(b) alter the voting rights with respect to the Convertible Preferred
Stock or reduce the number of shares of Convertible Preferred Stock whose
holders must consent to an amendment, supplement or waiver;
(c) reduce the liquidation preference of or alter the number of
shares of Common Stock issuable upon redemption of the Convertible
Preferred Stock in accordance with the second sentence of Section 5(i)
hereof;
(d) reduce the rate of or change the time for payment of dividends on
any share of Convertible Preferred Stock;
(e) waive the consequences of any failure to pay dividends on the
Convertible Preferred Stock;
(f) make any share of Convertible Preferred Stock payable in any form
other than that stated in this Certificate of Designations;
13
<PAGE>
(g) make any change in the provisions of this Certificate of
Designations relating to waivers of the rights of holders of Convertible
Preferred Stock to receive the liquidation preference and dividends on the
Convertible Preferred Stock; or
(h) make any change in the foregoing amendment and waiver provisions.
(vii) The Company in its sole discretion may without the vote or consent of
any holders of the Convertible Preferred Stock amend or supplement this
Certificate of Designations:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Convertible Preferred Stock in
addition to or in place of certificated Convertible Preferred Stock; or
(c) to make any change that would provide any additional rights or
benefits to the holders of the Convertible Preferred Stock or that does not
adversely affect the legal rights under this Certificate of Designations of
any such holder.
(vii) The consent of the holders of the Convertible Preferred Stock will
not be required for the Company to increase or decrease the amount of authorized
capital stock of any class, including any preferred stock, and such increase or
decrease in the amount of such authorized capital stock shall not be deemed to
affect adversely the rights, preferences, privileges, special rights or voting
rights of holders of shares of Convertible Preferred Stock.
8. Exclusion of Other Rights. Except as may otherwise be required by
-------------------------
law, the shares of Convertible Preferred Stock shall not have any voting powers,
preferences and relative, participating, optional or other special rights, other
than those specifically set forth in this resolution (as such resolution may be
amended from time to time) and in the Certificate of Incorporation. The shares
of Convertible Preferred Stock shall have no preemptive or subscription rights.
14
<PAGE>
9. Headings of Subdivisions. The headings of the various subdivisions
------------------------
hereof are for convenience of reference only and shall not affect the
interpretation of any of the provisions hereof.
10. Severability of Provisions. If any voting powers, preferences and
--------------------------
relative, participating, optional and other special rights of the Convertible
Preferred Stock and qualifications, limitations and restrictions thereof set
forth in this Certificate of Designations (as such Certificate of Designations
may be amended from time to time) is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other voting powers,
preferences and relative, participating, optional and other special rights of
Convertible Preferred Stock and qualifications, limitations and restrictions
thereof set forth in this Certificate of Designations (as so amended) which can
be given effect without the invalid, unlawful or unenforceable voting powers,
preferences and relative, participating, optional or other special rights of
Convertible Preferred Stock and qualifications, limitations and restrictions
thereof shall, nevertheless, remain in full force and effect, and no voting
powers, preferences and relative, participating, optional or other special
rights of Convertible Preferred Stock and qualifications, limitations and
restrictions thereof herein set forth shall be deemed dependent upon any other
such voting powers, preferences and relative, participating, optional or other
special rights of Convertible Preferred Stock and qualifications, limitations
and restrictions thereof unless so expressed herein.
11. Re-issuance of Convertible Preferred Stock. Shares of Convertible
------------------------------------------
Preferred Stock that have been issued and reacquired in any manner, including
shares purchased or redeemed or exchanged or converted, shall (upon compliance
with any applicable provisions of the laws of Delaware) have the status of
authorized but unissued shares of preferred stock of the Company undesignated as
to series and may be designated or re-designated and issued or reissued, as the
case may be, as part of any series of preferred stock of the Company; provided,
--------
that any issuance of such shares as Convertible Preferred Stock must be in
compliance with the terms hereof.
12. Mutilated or Missing Preferred Stock Certificates. If any of the
-------------------------------------------------
Convertible Preferred Stock certificates shall be mutilated, lost, stolen or
destroyed, the Company shall issue, in exchange and in substitution
15
<PAGE>
for and upon cancellation of the mutilated Convertible Preferred Stock
certificate, or in lieu of and substitution for the Convertible Preferred Stock
certificate lost, stolen or destroyed, a new Convertible Preferred Stock
certificate of like tenor and representing an equivalent amount of shares of
Convertible Preferred Stock, but only upon receipt of evidence of such loss,
theft or destruction of such Convertible Preferred Stock certificate and
indemnity, if requested, satisfactory to the Company and the transfer agent (if
other than the Company).
13. Certain Definitions. As used in this Certificate of Designations,
-------------------
the following terms shall have the following meanings (with terms defined in the
singular having comparable meanings when used in the plural and vice versa),
unless the context otherwise requires:
"Business Day" means any day except a Saturday, a Sunday, or any day on
------------
which banking institutions in New York, New York are required or authorized by
law or other governmental action to be closed.
"Closing Price" means, for any Trading Day, the closing bid price for the
-------------
Common Stock on the Nasdaq Stock Market or, if the Common Stock is not quoted on
the Nasdaq Stock Market, the closing bid price in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose.
"Commission" means the Securities and Exchange Commission.
----------
"Common Stock" means the common stock, par value $0.01 per share, of the
------------
Company.
"Conversion Price" shall initially mean $6.00 per share of Convertible
----------------
Preferred Stock and thereafter shall be subject to adjustment from time to time
pursuant to the terms of the second paragraph of Section 2(i) hereof and Section
3 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Investment Agreement" means the Investment Agreement, dated as of April 7,
--------------------
1999, between the Company and Apollo Investment Fund, L.P.
16
<PAGE>
"Market Price", per share of Common Stock, on any date, shall mean the
------------
previous Trading Day's Closing Price.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint stock company, trust, limited liability company,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Trading Day" means any day on which the Nasdaq Stock Market or other
-----------
applicable stock exchange or market is open for business.
IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed by, Richard H. Wiley, Chief Financial Officer of the Company, and
attested by Steve Armstrong, Assistant Secretary of the Company, this 9th day of
April, 1999.
SAMSONITE CORPORATION
By: /s/ RICHARD H. WILEY
------------------------------
Name: Richard H. Wiley
Title: Chief Financial Officer
ATTEST:
By: /s/ STEVE ARMSTRONG
---------------------------
Name: Steve Armstrong
Title: Assistant Secretary
17
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.4
<SEQUENCE>6
<DESCRIPTION>REGISTRATION RIGHTS AGREEMENT DATED APRIL 7, 1999
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Exhibit 10.4
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REGISTRATION RIGHTS AGREEMENT
between
SAMSONITE CORPORATION
and
APOLLO INVESTMENT FUND, L.P.
___________________
Dated as of April 7, 1999
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TABLE OF CONTENTS
1. Certain Definitions................................................... 1
2. Demand Registrations.................................................. 2
(a) Right to Request Registration.................................... 2
(b) Number of Demand Registrations................................... 3
(c) Priority on Demand Registrations................................. 3
(d) Restrictions on Demand Registrations............................. 4
(e) Selection of Underwriters........................................ 4
(f) Other Registration Rights........................................ 5
(g) Pre-emption of Demand Registration............................... 5
(h) Effective Period of Demand Registrations......................... 6
3. Piggyback Registrations............................................... 6
(a) Right to Piggyback............................................... 6
(b) Priority on Primary Registrations................................ 7
(c) Priority on Secondary Registrations.............................. 7
(d) Selection of Underwriters........................................ 8
(e) Other Registrations.............................................. 8
4. Holdback Agreements................................................... 8
5. Registration Procedures............................................... 9
6. Registration Expenses................................................. 13
7. Indemnification....................................................... 14
8. Participation in Underwritten Registrations........................... 17
9. Rule 144.............................................................. 17
10. Miscellaneous......................................................... 17
(a) No Inconsistent Agreements....................................... 17
(b) Remedies......................................................... 17
(c) Amendments and Waivers........................................... 18
(d) Successors and Assigns........................................... 18
(e) Severability..................................................... 18
(f) Counterparts..................................................... 18
(g) Descriptive Headings............................................. 18
(h) Governing Law.................................................... 18
(i) Notices.......................................................... 18
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REGISTRATION RIGHTS AGREEMENT dated as of April 7, 1999, between Samsonite
Corporation, a Delaware corporation (the "Company"), and Apollo Investment Fund,
L.P., a Delaware limited partnership ("Apollo").
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the following
terms shall have the following meanings:
"Agreement" means this Registration Rights Agreement, including all
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amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day" means any day on which commercial banks are open for
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business in New York, New York.
"Common Stock" means the Company's common stock, par value $0.01 per share.
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"Convertible Preferred Stock" means the Company's Series Z Convertible
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Preferred Stock, par value $0.01 per share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Holder" means Apollo, its affiliates, accounts managed by Apollo or any
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such affiliate and any successors or as-signs of Apollo, any such affiliate or
any such account who acquires Registrable Common Stock, directly or indirectly,
from Apollo, such affiliate, such account or such transferee or assignee. For
purposes of this Agreement, the Company may deem and treat the registered holder
of Registrable Common Stock as the Holder and absolute owner thereof, and the
Company shall not be affected by any notice to the contrary.
"Person" means an individual, partnership, corporation, trust, limited
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liability company, or unincorporated organi-
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zation, or a government or agency or political subdivision thereof.
"Prospectus" means the prospectus or prospectuses included in any
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Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Common Stock covered by such Registration Statement and by all other
amendments and supplements in the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus or
prospectuses.
"Registrable Common Stock" means (a) any of the Common Stock or (b) any of
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the Convertible Preferred Stock, in each case, held by the Holders from time to
time as to which registration pursuant to the Securities Act is required for a
public sale, including, in the case of Convertible Preferred Stock, the Common
Stock issued or issuable upon conversion of the Convertible Preferred Stock.
"Registration Statement" means any registration statement of the Company
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which covers any of the Registrable Common Stock pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all materials incorporated by reference in such Registration Statement.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
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"underwritten registration or underwritten offering" means a registration
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in which securities of the Company are sold to underwriters for reoffering to
the public.
2. Demand Registrations.
(a) Right to Request Registration. Any time after the date of this
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Agreement, Apollo, its affiliates or any Person designated by Apollo or its
affiliates (so long as the Person making such demand is a Holder of Registrable
Common Stock) may request registration under the Securities Act of all or part
of the Registrable Common Stock ("Demand Registrations").
Within 10 days after receipt of any such request for Demand Registration,
the Company shall give written notice
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of such request to all other Holders of Registrable Common Stock and shall,
subject to the provisions of Section 2(d) hereof, include in such registration
all such Registrable Common Stock with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of the
Company's notice.
For purposes of determining the number of shares of Registrable Common
stock held by a Holder, for purposes of this Agreement but not for any other
purpose, any holder of record of such Convertible Preferred Stock shall be
deemed to be a Holder of the number of shares of Common Stock issuable upon
conversion of such Convertible Preferred Stock.
(b) Number of Demand Registrations. Subject to the provisions of Section
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2(a), the Holders of Registrable Common Stock shall be entitled to request an
aggregate of three Demand Registrations; provided the Holders shall not be
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entitled to request more than one Demand Registration during any 12-month
period. A registration shall not count as one of the permitted Demand
Registration (i) until it has become effective, (ii) if the Holders initiating
the request for such registration are not able to register and sell at least 50%
of the Registrable Common Stock requested by such Holders to be included in such
registration or (iii) in the case of a Demand Registration that would be the
last permitted Demand Registration requested hereunder, if the Holders
requesting such registration are not able to register and sell all of the
Registrable Common Stock requested to be included by such Holders in such
registration.
(c) Priority on Demand Registrations. Except as provided in Section
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2(g), the Company shall not include in any Demand Registration any securities
which are not Registrable Common Stock without the written consent of the
Holders of a majority of the shares of Registrable Common Stock to be included
in such registration, or, if such Demand Registration is an underwritten
offering, without the written consent of the managing underwriters. If the
managing underwriters of the requested Demand Registration advise the Company in
writing that in their opinion the number of shares of Registrable Common Stock
proposed to be included in any such registration exceeds the number of
securities which can be sold in such offering, the Company shall include in such
registration only the number of shares of Registrable Common Stock which in the
opinion of such managing underwriters can be sold. If the number of shares which
can be sold is less than the number of shares of Registrable Common Stock
proposed to be registered, the amount of Regis-
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trable Common Stock to be so sold shall be allocated pro rata among the Holders
of Registrable Common Stock desiring to participate in such registration on the
basis of the amount of such Registrable Common Stock initially proposed to be
registered by such Holders. If the number of shares which can be sold exceeds
the number of shares of Registrable Common Stock proposed to be sold, such
excess shall be allocated pro rata among the other holders of securities, if
any, desiring to participate in such registration based on the amount of such
securities initially requested to be registered by such holders.
(d) Restrictions on Demand Registrations. The Company shall not be
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obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration or a previous registration
under which the Holders had piggyback rights pursuant to Section 3 hereof
(irrespective of whether such rights were exercised). The Company may (i)
postpone for up to six months the filing or the effectiveness of a registration
statement for a Demand Registration if, based on the good faith judgment of the
Company's Board of Directors, such postponement or withdrawal is necessary in
order to avoid premature disclosure of a matter the Board has determined would
not be in the best interest of the Company to be disclosed at such time or (ii)
postpone the filing of a Demand Registration in the event the Company shall be
required to prepare audited financial statements as of a date other than its
fiscal year end (unless the stockholders requesting such registration agree to
pay the expenses of such an audit); provided, however, that in no event shall
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the Company withdraw a registration statement under clause (i) after such
registration statement has been declared effective; and provided, further,
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however, that in any of the events described in clause (i) or (ii) above, the
Holders initiating the request for such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations. The
Company shall provide written notice to the Holders of Registrable Common Stock
initiating the request for such Demand Registration of (x) any postponement or
withdrawal of the filing or effectiveness of a registration statement pursuant
to this paragraph (d), (y) the Company's decision to file or seek effectiveness
of such registration statement following such withdrawal or postponement and (z)
the effectiveness of such registration statement.
(e) Selection of Underwriters. If any of the Registrable Common Stock
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covered by a Demand Registration are to
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be sold in an underwritten offering, the Company shall have the right to select
the managing underwriter(s) to administer the offering.
(f) Other Registration Rights. The Company shall not grant to any Person
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the right, other than as set forth herein and except to employees of the Company
with respect to registrations on Form S-8 (or any successor forms thereto), to
request the Company to register any securities of the Company except such rights
as are not more favorable than or inconsistent with the rights granted to the
Holders herein, without the written consent of the Holders of a majority of the
number of shares of Registrable Common Stock then outstanding.
(g) Pre-emption of Demand Registration. Notwithstanding anything to the
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contrary contained herein, if at any time a Holder shall request a Demand
Registration pursuant to this Section 2, the Company may elect at that time to
effect an underwritten primary registration if, based on the good faith judgment
of the Company's Board of Directors, it would be in the best interests of the
Company to access the public market to raise equity capital in order to (i)
finance an acquisition that is the subject of a letter intent or acquisition
agreement at the time of such request for a Demand Registration or (ii)
deleverage the Company to deal with potential covenant or other defaults under
any material contract. If the Company elects to effect a primary registration
after receiving such a request for a Demand Registration, the Company will give
prompt written notice (and in any event within 45 days after receiving such a
request for a Demand Registration) to all Holders of its intention to effect
such a registration and shall afford the Holders rights to Piggyback
Registrations contained in Section 3 hereof, except that if the managing
underwriters of such offering advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, the provisions of Section
3(b) hereof shall not apply to such offering, and instead the Company shall
include in such registration the maximum number of securities which such
underwriters advise can be sold in such offering allocated (x) first, equally
among the Company, on the one hand, and the Holders as a group, on the other
hand (allocated among such Holders pro rata on the basis of the number of shares
requested to be registered by such Holders), so as to include in such
registration up to the full number of securities requested to be included
therein by each of the Company and the Holders, (y) second, if the number of
shares included therein pursuant to the
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foregoing clause (x) equals the total number of shares requested to be included
therein by the Holders as a group or the Company, such additional number of
shares requested to be included therein by the Company or the Holders (allocated
among such holders pro rata on the basis of the number of shares requested to be
registered by such holders), respectively, and (z) third, other securities
requested to be included in such registration pro rata among the holders of such
securities on the basis of the number of shares requested to be registered by
such holders. In the event that the Company so elects to effect such a primary
registration after receiving a request for such a Demand Registration, such
registration shall not count as one of the permitted Demand Registrations of the
Holders who requested such registration.
(h) Effective Period of Demand Registrations. After any Demand
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Registration filed pursuant to this Agreement has become effective, the Company
shall use its best efforts to keep such Demand Registration effective for a
period equal to 90 days from the date on which the SEC declares such Demand
Registration effective (or if such Demand Registration is not effective during
any period within such 90 days, such 90-day period shall be extended by the
number of days during such period when such Demand Registration is not
effective), or such shorter period which shall terminate when all of the
Registrable Common Stock covered by such Demand Registration has been sold
pursuant to such Demand Registration. If the Company shall withdraw any Demand
Registration pursuant to subsection (d) of this Section 2 (a "Withdrawn Demand
Registration"), the Holders of the Registrable Common Stock remaining unsold and
originally covered by such Withdrawn Demand Registration shall be entitled to a
replacement Demand Registration which (subject to the provisions of this Section
2) the Company shall use its best efforts to keep effective for a period
commencing on the effective date of such Demand Registration and ending on the
earlier to occur of the date (i) which is 90 days from the effective date of
such Demand Registration and (ii) on which all of the Registrable Common Stock
covered by such Demand Registration has been sold. Such additional Demand
Registration otherwise shall be subject to all of the provisions of this
Agreement.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
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its equity securities (other than Registrable Common Stock) under the Securities
Act (other than a registration statement on Form S-8 or on Form S-4 or
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any successor forms thereto), whether for its own account or for the account of
one or more securityholders of the Company, and the registration form to be used
may be used for any registration of Registrable Common Stock (a "Piggyback
Registration"), the Company shall give prompt written notice (in any event
within 10 business days after its receipt of notice of any exercise of other
demand registration rights) to all Holders of its intention to effect such a
registration and, subject to Sections 3(b) and 3(c), shall include in such
registration all Registrable Common Stock with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice. The Company may postpone or withdraw the filing or the
effectiveness of a Piggyback Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
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underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Common Stock pro rata among the Holders of such
Registrable Common Stock on the basis of the number of shares requested to be
registered by such Holders, and (iii) third, other securities requested to be
included in such registration pro rata among the holders of such securities on
the basis of the number of shares requested to be registered by such holders.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
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an underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Common Stock, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company shall include in such registration (i) first
the securities requested to be included therein by the holders requesting such
registration and the Registrable Common Stock requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares requested to be registered by such holders, and (ii) second,
other securities requested to be included in such registration pro rata among
the holders of such securities on the basis of the number of shares requested to
be registered by such holders.
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(d) Selection of Underwriters. If any Piggyback Registration is an
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underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Common Stock pursuant to
Section 2 hereof or pursuant to this Section 3, and if such previous
registration has not been withdrawn or abandoned, the Company shall not be
obligated to cause to become effective any other registration of any of its
securities under the Securities Act, whether on its own behalf or at the request
of any holder or holders of such securities, until a period of at least three
months has elapsed from the effective date of such previous registration.
4. Holdback Agreements.
(a) Each Holder agrees not to offer, sell, contract to sell or otherwise
dispose of any shares of Common Stock, shares of Convertible Preferred Stock or
any securities that represent the right to receive shares of Common Stock or
Convertible Preferred Stock during the 10 days prior to and the 90 days
beginning on the effective date of any underwritten primary or secondary
offering of equity securities of the Company (including, but not limited to, any
underwritten Demand Registration or any underwritten Piggyback Registration
whether or not shares of Registrable Common Stock are included (except as part
of such underwritten registration)) unless the underwriters managing the
offering otherwise agree, in each case to the extent timely notified of such
offering in writing by the Company or by the managing underwriter or
underwriters. The Company and the Holders agree that the provisions of this
Section 4(a) shall be enforceable by such underwriter(s) against any Holder, it
being understood that such underwriter(s) are intended third party beneficiaries
hereof and, if so requested by such underwriter(s), each Holder agrees to
execute and deliver to such underwriter(s) such agreements and instruments, in
form and substance reasonably satisfactory to such underwriter(s), further
evidencing such Holder's agreement not to sell such securities during such
period.
The foregoing paragraph shall not apply to (i) any Holder to the extent
such Holder is prohibited by applicable law from agreeing to withhold its
securities from sale, (ii) any transfer by a Holder to an affiliate of such
Holder or to any other transferee in a private transaction not requiring
registration under the Securities Act provided,
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that such affiliate or other transferee acknowledges in writing that it is bound
by the provisions of this Section 4(a) or (iii) any Holder, with respect to any
offering, if such Holder, immediately prior to the effective date of such
offering, beneficially owns together with all of its affiliates less than 3.0%
of the amount of Common Stock (including shares of Common Stock issuable upon
conversion of the Convertible Preferred Stock) being sold in such offering.
(b) Subject to Section 2(g) hereof, the Company agrees not to effect any
registration with respect to any public offer, sale or distribution of any of
its equity securities during the 10 days prior to and during the 90 days
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or S-4 or any successor
forms thereto) unless the underwriters managing the registered public offering
otherwise agree.
5. Registration Procedures.
Whenever the Holders request that any Registrable Common Stock be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Common Stock in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect to
such Registrable Common Stock and use its best efforts to cause such
Registration Statement to become effective as soon as practicable thereafter;
and before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, furnish to the Holders of Registrable Common Stock covered
by such Registration Statement and the underwriter or underwriters, if any,
copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by such Holders,
the exhibits incorporated by reference, and such Holders shall have the
opportunity to object to any information pertaining solely to such Holders that
is contained therein and the Company will make the corrections reasonably
requested by such Holders with respect to such information prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
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(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective for a period of not less
than 90 days, in the case of a Demand Registration, or such shorter period as is
necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Stock such number of
copies of such Registration Statement, each amendment and supplement thereto,
the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Common Stock
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Common
Stock under such other securities or blue sky laws of such jurisdictions as any
seller reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Common Stock owned by such
seller (provided, that the Company will not be required to (i) qualify generally
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to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph (d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Common Stock, at any time when
a Prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any event as a result of which the prospectus included
in such Registration Statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such Prospectus so that, as thereafter delivered to the purchasers
of such Registrable Common Stock, such Prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
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(f) in the case of an underwritten offering, enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the Holders of a majority of number of shares of the
Registrable Common Stock being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Common Stock (including, without limitation, effecting a stock split or a
combination of shares and using its best efforts to cause members of management
of the Company to participate on a reasonable basis in customary "road-show"
activities to the extent required by the underwriters consistent with the
Company's most recent experience in connection with an offering of its equity
securities and with a view to maximizing the price of the Common Stock sold in
such offering) and cause to be delivered to the underwriters and the sellers, if
any, opinions of counsel to the Company in customary form, covering such matters
as are customarily covered by opinions for an underwritten public offering as
the underwriters may request and addressed to the underwriters and the sellers;
(g) make available, for inspection by any seller of Registrable Common
Stock, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
(h) use its best efforts to cause all such Registrable Common Stock to be
listed on each securities exchange on which securities of the same class issued
by the Company are then listed or, if no such similar securities are then
listed, on the Nasdaq Stock Market or a national securities exchange selected by
the Company;
(i) provide a transfer agent and registrar for all such Registrable Common
Stock not later than the effective date of such Registration Statement;
(j) cause to be delivered, immediately prior to the effectiveness of the
Registration Statement (and, in the case of an underwritten offering, at the
time of delivery of any Registrable Common Stock sold pursuant thereto), letters
from the Company's independent certified public accountants
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addressed to each selling Holder and each underwriter, if any, stating that such
accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with primary or secondary
underwritten public offerings, as the case may be;
(k) make generally available to the Holders a consolidated earnings
statement (which need not be audited) for the 12 months beginning after the
effective date of a registration statement as soon as reasonably practicable
after the end of such period, which earnings statement shall satisfy the
requirements of an earning statement under Section 11(a) of the Securities Act;
(l) promptly notify each seller of Registrable Common Stock and the
underwriter or underwriters, if any:
(i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement has been filed and, with respect to
the Registration Statement or any post-effective amendment, when the same
has become effective;
(ii) of any written request by the SEC for amendments or
supplements to the Registration Statement or Prospectus;
(iii) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement; and
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable Common
Stock for sale under the applicable securities or blue sky laws of any
jurisdiction.
At all times after the Company has filed a registration statement with the
SEC pursuant to the requirements of either the Securities Act or the Exchange
Act, the Company shall file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regu-
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lations adopted by the SEC thereunder, and take such further action as any
Holder or Holders may reasonably request, all to the extent required to enable
such Holders to be eligible to sell Registrable Common Stock pursuant to Rule
144 (or any similar rule then in effect).
The Company may require each seller of Registrable Common Stock as to which
any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each seller of Registrable Common Stock agrees by having its stock treated
as Registrable Common Stock hereunder that, upon notice of the happening of
any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, such seller will
forthwith discontinue disposition of Registrable Common Stock until such seller
is advised in writing by the Company that the use of the Prospectus may be
resumed and is furnished with a supplemented or amended Prospectus as
contemplated by Section 5(e) hereof, and, if so directed by the Company, such
seller will deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such seller's possession, of the Prospectus
covering such Registrable Common Stock current at the time of receipt of such
notice. If the Company shall give any notice to suspend the disposition of
Registrable Common Stock pursuant to a Prospectus, the Company shall extend the
period of time during which the Company is required to maintain the Registration
Statement effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date such seller either is advised by the Company that the use of the
Prospectus may be resumed or receives the copies of the supplemented or amended
Prospectus contemplated by Section 5(e).
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent's and registrar's fees, cost
of distributing prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and
all independent certified public accountants and
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other Persons retained by the Company (all such expenses being herein called
"Registration Expenses") (but not including any underwriting discounts or
commissions attributable to the sale of Registrable Common Stock or fees and
expenses of more than one counsel representing the Holders of Registrable Common
Stock or any other selling expenses incurred in connection with the sale of
Registrable Common Stock), shall be borne by the Company. In addition, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which they are to be
listed.
(b) In connection with each registration initiated hereunder (whether a
Demand Registration or a Piggyback Registration), the Company shall reimburse
the Holders covered by such registration or sale for the reasonable fees and
disbursements of one law firm chosen by the Holders of a majority of the number
of shares of Registrable Common Stock included in such registration or sale.
(c) The obligation of the Company to bear the expenses described in
Section 6(a) and to reimburse the Holders for the expenses described in Section
6(b) shall apply irrespective of whether a registration, once properly demanded,
if applicable, becomes effective, is withdrawn or suspended, is converted to
another form of registration and irrespective of when any of the foregoing shall
occur; provided, however, that Registration Expenses for any registration
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statement withdrawn solely at the request of a Holder of Registrable Common
Stock (unless withdrawn following postponement of filing by the Company in
accordance with Section 2(e)(i) or (ii)) or any supplements or amendments to a
registration statement or prospectus resulting from a misstatement furnished to
the Company by a Holder shall be borne by such Holder.
7. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent permitted by
law, each Holder, its officers, directors and affiliates and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or any amendment thereof or
supple-
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ment thereto or any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein or
by such Holder's failure to deliver a copy of the Registration Statement or
Prospectus or any amendments or supplements thereto after the Company has
furnished such Holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Holders.
(b) In connection with any Registration Statement in which a Holder of
Registrable Common Stock is participating, each such Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the Registration Statement, Prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such Holder expressly for use in the Registration
Statement; provided, however, that the obligation to indemnify shall be several,
--------
not joint and several, among such Holders and the liability of each such Holder
shall be in proportion to and limited to the net amount received by such Holder
from the sale of Registrable Common Stock pursuant to such Registration
Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for
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any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim. Failure to give prompt written notice shall not release
the indemnifying party from its obligations thereunder.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section 7
is due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of any selling Holder be
greater in amount than the amount of net proceeds received by such Holder upon
such sale or the amount for which such indemnifying party would have been
obligated to pay by way of indemnification if the indemnification provided for
under Section 7(a) or 7(b) hereof had been available under the circumstances.
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8. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
9. Rule 144.
The Company covenants that 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 SEC thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any holder of Registrable Common Stock,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will take such further action as
any Holder may reasonably request, to the extent required to enable such Holder
to sell Registrable Common Stock without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such information and requirements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement.
(b) Remedies. The parties agree and acknowledge that the rights granted
--------
to the parties hereunder are valuable and unique and that any Person having
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without the posting of any bond or other security), to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law.
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(c) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of Holders of a
majority of the number of shares of Registrable Common Stock then outstanding;
provided, however, that if such prohibited action or omission does not
--------
adversely affect the rights of all of the Holders, the Company shall not be
required to obtain the consent of any such Holder not adversely affected
thereby.
(d) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including any Person to whom Registrable Common Stock are transferred) and all
of the Holders whether so expressed or not.
(e) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
------------
counterparts, each of which shall constitute an original, but both of which
taken together shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without giving effect to
conflict of laws rules.
(i) Notices. All notices, demands or other communications to be given
-------
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (i) when delivered personally or
by overnight courier or similar courier to the recipient, (ii) by facsimile
transmission (receipt of which is confirmed) or (iii) three business days after
being mailed by certified or registered mail, return receipt requested
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<PAGE>
and postage prepaid, properly addressed, to the recipient. Such notices, demands
and other communications shall be sent as follows:
(1) If to the Company:
Samsonite Corporation
11200 East 45th Avenue
Denver, CO 80239
Attention: General Counsel
Facsimile No.: (303) 373-6406
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Gregory A. Fernicola, Esq.
Facsimile No.: (212) 735-2000
(2) If to Apollo:
Apollo Advisors, L.P.
2 Manhattanville Road
Purchase, New York 10577
Facsimile No.: (212) 261-4070
(3) If to any other Holder:
at the address or facsimile number indicated on the books of the
Company
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective
as of April 7, 1999.
SAMSONITE CORPORATION
By: Steve Armstrong
----------------
Name: Steve Armstrong
Title: General Counsel
APOLLO INVESTMENT FUND, L.P.
By: Apollo Advisors, L.P.,
Its General Partner
By: Apollo Capital Management, Inc.,
Its General Partner
By: Robert H. Falk
---------------
Name: Robert H. Falk
Title: Vice President
20