Employment Agreement - Samsonite Corp. and James E. Barch
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (this "Agreement"), effective as of August 4, 1996
(the "Effective Date"), by and between SAMSONITE CORPORATION, a Delaware
corporation (the "Company"), and JAMES E. BARCH (the "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to retain the services of the
Executive and to enter into this Agreement as of the Effective Date.
WHEREAS, the Executive is willing to serve the Company on the terms and
conditions herein provided.
THEREFORE, in consideration of the foregoing and of the premises and
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT
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The Company agrees to employ the Executive and the Executive agrees to
serve the Company on the terms and conditions set forth herein.
2. TERM
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This Agreement shall have a term (the "Term") beginning on the Effective
Date and expiring on the third anniversary of the Effective Date.
3. POSITION AND DUTIES
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(a) The Executive shall serve initially as Vice President and General
Manager Hardside Products and shall perform such duties and services prescribed
herein and as may be prescribed from time to time by the President of The
Americas, the President and Chief Executive Officer (the "CEO") and/or the Board
of Directors of the Company or any duly authorized committee thereof (the
"Board"). The Executive shall perform such duties, under the supervision and
direction of the Board, to the best of his ability and in a diligent and proper
manner. The Executive shall report directly to the President of The Americas.
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(b) Except during customary vacation periods and periods of illness, the
Executive shall, during his employment hereunder, devote his full business time
and attention to the performance of services for the Company, and as determined
by the Board.
(c) Nothing in this Agreement shall affect the Executive's duty of
loyalty and duty of care to the Company and its subsidiaries as provided under
applicable state laws.
4. COMPENSATION AND RELATED MATTERS
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(a) Salary. During the Executive's employment hereunder, the Company
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shall pay to the Executive a salary ("Base Salary") in equal installments in
accordance with normal payroll practices of the Company but not less frequently
than monthly. The Base Salary shall be payable at the rate of $180,000 per
annum, starting as of the Effective Date. The payments of Base Salary hereunder
shall not in any way limit or reduce any other obligation of the Company
hereunder, and no other compensation, benefit or payment hereunder shall in any
way limit or reduce the obligation of the Company to pay the Executive's Base
Salary hereunder. The Board, at any time and from time to time, may increase
(but not reduce) the Base Salary payable under this Agreement, and increase in
the Base Salary shall become effective at the time indicated by the Board
without the need for an amendment to this Agreement.
(b) Relocation. It is contemplated that the Executive's office shall be
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in the Company's executive offices in Denver, Colorado, unless, subsequently
during the Term, the Board and the Executive agree that it would be desirable
for the Executive's office to be located elsewhere. Accordingly, the Executive
shall promptly relocate to the Denver metropolitan area and shall own or lease a
residence in the Denver metropolitan area so long as he shall be headquartered
there. To defray the cost of relocating to the Denver metropolitan area, the
Company shall make a lump sum payment of $50,000 to the Executive, payable
within 30 days after the Effective Date, and shall provide the relocation
benefits set forth in the Samsonite Relocation Policy - Transferred Employees
(effective date July 1, 1988), excluding all of the benefits set forth in
Sections II and VI (A), (B), (D) and (E) of such Policy, and except that the
benefits under Section VI (F) shall be limited to three (3) months. Except as
provided in the preceding sentence, the Company shall have no obligation to
reimburse the Executive for any costs and expenses incurred in connection with
the relocation of the Executive and his family to the Denver metropolitan area.
(c) Expenses. The Executive shall be entitled to receive prompt
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reimbursement from the Company of all reasonable expenses incurred by the
Executive in performing services hereunder, in accordance with the policies and
procedures established
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by the Company from time to time. The Executive shall furnish the Company with
evidence that such expenses were incurred as the Company may from time to time
reasonably request.
(d) Stock Option Agreement. As an inducement to enter into this
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Agreement and solely in connection with the performance of services by the
Executive pursuant to this Agreement, the Executive shall receive a grant of
stock options (the "Options") to purchase 100,000 shares of the common stock,
par value $.01 per share ("Common Stock"), of the Company pursuant to and
subject to the terms and conditions of the Stock Option Agreement, by and
between the Company and the Executive (the "Stock Option Agreement").
(e) Other Benefits. From and after the Effective Date, the Executive
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shall be entitled to participate in all of the Company's employee pension plans,
welfare benefit plans, tax-deferred savings plans, or other benefit arrangements
(including any insurance or trust arrangements maintained generally for the
benefit of the Company's directors and officers) and in which the senior
executives of the Company who receive equity-based compensation are entitled to
participate (collectively, the "Company Plans"), on the same basis as other
senior executives of the Company who receive equity-based compensation, and
shall be provided with the use of a Company provided automobile in accordance
with the Company's current policy for executive officers. Without limiting the
generality of the foregoing, if the Board so determines, the Executive shall be
entitled to participate in any supplemental executive retirement plan or excess
benefit plan (a "SERP") that the Company may maintain from time to time for the
benefit of its senior executive officers who receive equity- based compensation
provided that Executive's participation shall be on the same terms and
conditions as such senior executives, all as determined by the Board. The
Company and the Executive agree that nothing in this Agreement shall preclude
the Company from amending or terminating any such employee benefit plan, policy
or practice, whether now or hereinafter in effect.
(f) Incentive Bonus. The Executive shall be eligible to receive an
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annual incentive bonus (the "Incentive Bonus") in respect of each fiscal year of
the Company that ends during the Term, starting with the fiscal year ending
January 31, 1997. The Incentive Bonus in respect of each fiscal year that ends
during the Term (each, a "Reference Year") shall be calculated on the terms
hereafter set forth in this Section 4(f). The Incentive Bonus may, subject to
the conditions set forth below, equal up to 100% of the Executive's Base Salary.
Except as provided in Section 4(f)(v) below, the Executive's Incentive Bonus
shall consist of a Target Bonus and a Project Bonus (each as defined below),
determined as follows:
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(i) A portion of the Incentive Bonus (the "Target Bonus") in an amount
equal to one-half of the EBIT Attainment Percentage (as defined below)
multiplied by the Base Salary of the Executive (with respect to the applicable
Reference Year) shall be payable to the Executive with respect to each
Reference Year, provided that the Target Bonus shall not be paid with respect
to any Reference Year if the EBIT Attainment Percentage with respect to such
Reference Year is less than eighty percent (80%). The "EBIT Attainment
Percentage" with respect to any Reference Year shall mean the percentage that
is established as follows: if the EBIT (as defined below) of the Company with
respect to the Reference Year is
(A) less than the Minimum EBIT Target (as defined below) for such
Reference Year, then the EBIT Attainment Percentage shall equal zero
percent (0%);
(B) equal to the Minimum EBIT Target for such Reference Year, the
EBIT Attainment Percentage shall equal eighty percent (80%);
(C) greater than the Minimum EBIT Target but less than the Annual
EBIT Target (as defined below) for such Reference Year, the EBIT
Attainment Percentage shall equal the sum of (x) eighty percent (80%)
plus (y) the product of ten percent (10%) multiplied by a fraction, the
numerator of which shall be the excess of (I) the EBIT of the Company
over (II) the Minimum EBIT Target for such Reference Year and the
denominator of which shall be the excess of the Annual EBIT Target over
the Minimum EBIT Target; or
(D) equal to the Annual EBIT Target for such Reference Year, the EBIT
Attainment Percentage shall equal ninety percent (90%).
(E) greater than the Annual EBIT Target but less than the Maximum
EBIT Target (as defined below) for such Reference Year, the EBIT
Attainment Percentage shall equal the sum of (x) ninety percent (90%)
plus (y) the product of ten percent (10%) multiplied by a fraction, the
numerator of which shall be the excess of (I) the EBIT of the Company
over (II) the Annual EBIT Target for such Reference Year and the
denominator of which shall be the excess of the Maximum EBIT Target over
the Annual EBIT Target; or
(F) equal to or greater than the Maximum EBIT Target for such
Reference Year, the EBIT Attainment percentage shall equal one hundred
percent (100%).
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(ii) The Board shall determine the "Annual EBIT Target",the "Minimum
EBIT Target", and the "Maximum EBIT Target" for the Reference Years ending
January 31, 1997, January 31, 1998, January 31, 1999, and January 31, 2000,
and promptly after such targets have been determined, the Board shall give the
Executive written notice thereof. The Annual EBIT Targets, Minimum EBIT
Targets, and Maximum EBIT Targets determined by the Board shall be reasonably
achievable in the good faith judgment of the Board. The Board shall have the
right, acting unilaterally and in good faith, to adjust the Annual EBIT
Target, the Minimum EBIT Target, and the Maximum EBIT Target upon the
occurrence of any acquisition, disposition or other significant event that
occurs after such targets have been determined. For purposes of this Section
4(f), "EBIT" shall mean, for any period, the Company's consolidated earnings
(excluding extraordinary gains and losses and gains or losses from the sale of
fixed assets outside of the ordinary course of business) from continuing
operations before interest and taxes for such period, and EBIT shall be
determined on the same basis as the Annual EBIT Target, the Minimum EBIT
Target, and the Maximum EBIT Target. Notwithstanding the foregoing, EBIT for
any Reference Year shall be equitably adjusted by the Board (solely for the
purposes of Section 4(f)(i)) to the extent that the Company's business was not
conducted in the ordinary course in accordance with past practices.
(iii) A portion of the Incentive Bonus in a target amount equal to a
maximum of fifty percent (50%) of the Base Salary of the Executive (with
respect to the Reference Year) (the "Project Bonus") shall be payable to the
Executive to the extent that the Board determines that the Executive has
satisfactorily completed certain projects (the "Annual Projects") established
by the Board with respect to such Reference Year in accordance with this
subparagraph (iii); provided that the Board may award a Project Bonus between
eighty percent (80%) and one hundred percent (100%)of the target amount based
upon its evaluation of the manner in which the Executive completes the Annual
Projects. The Company shall determine the Annual Projects for each fiscal
year during the Term and promptly after such projects have been determined,
the Board shall give the Executive written notice thereof. The Annual
Projects determined by the Board shall be reasonably achievable in the good
faith judgment of the Board. The Executive acknowledges that the Annual
Projects established by the Board may not be measured by financial results or
other quantifiable standards and may depend on subjective judgments by the
Board, and the Executive agrees that the determination of the Board as to the
extent to which such Annual Projects have been satisfactorily completed shall
be conclusive for all purposes, provided that such determination shall be made
in good faith.
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(iv) Each Incentive Bonus (including the Target Bonus and the Project
Bonus) shall be paid not more than 30 days after a determination by the Board
that applicable performance goals have been met, and such determination shall
be made not later than 10 days following the filing of a Form 10-K for the
Company, or if the Company is not required to file a Form 10-K, not later than
10 days following the date upon which the Company's audited financial
statements first become available.
(v) The Executive shall be entitled to receive an Incentive Bonus for
the full Reference Year ending January 31, 1997 as if he had been employed for
the entire fiscal year then ending, in an amount not less than fifty percent
(50%) of the maximum Incentive Bonus for such Reference Year, regardless of
whether or not the Minimum EBIT Target or Annual Projects for such Reference
Year shall have been achieved. The Executive shall not be entitled to an
Incentive Bonus with respect to the fiscal year ending January 31, 2000.
(g) Vacation and other Absences. The Executive shall be entitled to
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the number of paid vacation days in each calendar year determined in accordance
with the Company's vacation policy as in effect immediately prior to the
execution of this Agreement, provided that the Executive shall be entitled to at
least four weeks of paid vacation in each calendar year and a prorata amount for
any partial calendar year.
(h) Services Furnished. The Company shall furnish the Executive with
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office space, secretarial assistance and such other facilities and services as
shall be suitable to the Executive's position and adequate for the performance
of his duties hereunder.
5. TERMINATION
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The Executive's employment hereunder may be terminated under the
following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
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his death.
(b) Disability. If the Board determines in good faith, based on
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medical evidence acceptable to it, that the Executive has become physically or
mentally disabled or incapacitated during his employment hereunder for a
continuous period of ninety (90) days to such an extent that he shall be unable
to perform his duties hereunder then, notwithstanding the provisions of Section
2, the Company may, after the expiration of said ninety (90) day period and
during the continuance of such disability or incapacity, give to the Executive
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a Notice of Termination (as defined in Section 5(e) hereof) of the Executive's
employment hereunder and such employment shall terminate on the date provided in
Section 5(f) hereof.
(c) Termination by the Company. The Company may terminate the
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Executive's employment hereunder at any time with or without Cause. For purposes
of this Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder upon (A) the engaging by the Executive in willful
misconduct that is materially injurious to the Company, (B) the embezzlement or
misappropriation of funds or property of the Company by the Executive or the
conviction of the Executive of a felony or the entrance of a plea of guilty by
the Executive to a felony or (C) the failure or refusal by the Executive to
devote his full business time and attention (as described in Section 3(b) of
this Agreement) to the performance of his duties and responsibilities hereunder
or any other breach by the Executive of this Agreement in any material respect
if such breach has not been cured by the Executive within thirty (30) days after
the Preliminary Notice (as defined below) has been given to the Executive. For
purposes of this paragraph, no act, or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Company. The Executive shall not be deemed to have been
terminated for Cause, unless the Company shall have given the Executive (i)
notice (the "Preliminary Notice") setting forth, in reasonable detail the facts
and circumstances claimed to provide a basis for termination for Cause, (ii) a
reasonable opportunity for the Executive, together with his counsel, to be heard
before the Board and (iii) a Notice of Termination stating that, in the good
faith judgement of the Board, the Executive was guilty of conduct set forth in
clauses (A), (B) or (C) above, and specifying the particulars thereof in
reasonable detail. Upon receipt of the Preliminary Notice, the Executive shall
have thirty (30) days in which to appear before the Board with counsel, or take
such other action as he may deem appropriate, and such thirty (30) day period is
hereby agreed to as a reasonable opportunity for the Executive to be heard.
(d) Termination by the Executive. The Executive may voluntarily
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terminate his employment hereunder at any time with or without Good Reason. For
purposes of this Agreement, "Good Reason" shall mean, so long as the Executive
has not been guilty of the conduct set forth in clauses (A), (B) or (C) of
Section 5(c) hereof, (i) a failure by the Company to comply with any material
provision of this Agreement that has not been cured within thirty (30) days
after written notice of such noncompliance has been given by the Executive to
the Company or (ii) the assignment to the Executive by the Company of duties
materially inconsistent with the Executive's current level of duties or
responsibilities as a senior executive, or (iii) a relocation by the Company of
the Executive's office to a location outside a 30 mile radius from Denver,
Colorado, which relocation is
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made not as part of a relocation of the Company's executive offices; (in the
case of each of clauses (ii) and (iii) above, without the consent of the
Executive). Notwithstanding the foregoing, for the Executive to terminate under
this Section 5(d), the Executive must give Notice of Termination not later than
60 days from, as applicable, the date that the Company fails to cure under (i)
above, the assignment of duties under (ii) above, and the date that the
Executive is advised of the proposed relocation under (iii) above.
(e) Notice of Termination. Any termination of the Executive's
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employment by the Company or by the Executive (other than termination pursuant
to Section 5(a) hereof) shall be communicated by written Notice of Termination
to the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice that shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances, if any, claimed to provide a basis for termination
of the Executive's employment under the provision so indicated.
(f) Date of Termination. Except to the extent otherwise herein
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provided, "Date of Termination" shall mean (i) if the Executive's employment is
terminated pursuant to Section 5(a), the date of his death, (ii) if the
Executive's employment is terminated pursuant to Section 5(b) or (c), the date
of or a later date specified in the Notice of Termination, (iii) if the
Executive's employment is terminated pursuant to Section 5(d), the date on which
the Notice of Termination is given and (iv) if this Agreement is continued in
effect to the end of the Term, the last day of the Term. Except as provided in
and subject to Section 6 hereof, the Company shall not have any obligation to
Executive for salary continuation, severance or termination pay upon termination
of this Agreement.
6. COMPENSATION UPON TERMINATION
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(a) If the Executive's employment is terminated (i) by the Company for
Cause, (ii) by the Executive other than for Good Reason, or (iii) by reason of
the Executive's death or disability (pursuant to Section 5(b) hereof), then the
Company shall pay the Executive his full Base Salary through the Date of
Termination (to the extent not otherwise paid through the Date of Termination)
at the rate in effect immediately prior to the Date of Termination, provided
that if the Executive's employment hereunder terminates by reason of his death,
the Company shall continue to make salary payments at the rate of the Base
Salary then in effect in respect of the month following the date of death. In
addition, notwithstanding any provision to the contrary in this Agreement, the
Executive shall continue to participate in, and shall receive all accrued
benefits to which the Executive is entitled under, all of the Company Plans,
through the Date of Termination, provided that the Executive shall not be
entitled to any portion of the Incentive Bonus unless such bonus shall be
payable pursuant to Section 4(f) with respect to a Reference Year ending on or
before the Date of
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Termination. With respect to the Incentive Bonus, if the Date of Termination
occurs after the end of a Reference Year and prior to the determination of
whether the performance goals for such Reference Year were met, such Incentive
Bonus shall be payable, if it is determined that such goals were met, in
accordance with the provisions of Section 4(f) hereof.
(b) If the Executive's employment is terminated (i) by the Company
without Cause (other than for disability pursuant to Section 5(b) hereof), or
(ii) by the Executive for Good Reason, then the Company shall pay to the
Executive, as severance pay in a lump sum, not later than the fifth day
following the Date of Termination, the following amounts, which shall not be
discounted to take into account present value:
(A) to the extent not otherwise paid through the Date of Termination,
the Executive's full Base Salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given; and
(B) in lieu of any further salary and bonus or other incentive
compensation payments to the Executive for periods subsequent to the Date of
Termination, the sum of two hundred percent (200%) of the Base Salary of the
Executive.
In addition to the foregoing, until such time that the Executive becomes
eligible for coverage under a program maintained or sponsored by a subsequent
employer of the Executive (not including self-employment), the Company shall, at
the Company's expense, allow the Executive to continue to participate, for a
period not to exceed six (6) months, to the same extent and upon the same terms
as the Executive participated in such plans immediately prior to the termination
of his employment, in the Company's medical reimbursement and other welfare
benefit plans in which the Executive was entitled to participate immediately
prior to the Date of Termination; provided that the Executive's continued
participation in such plan shall be continued pursuant to this sentence only to
the extent permissible under the general terms and provisions of such plans and
applicable law.
(c) In the event that this Agreement is continued in effect to the end
of the Term and at or prior to expiration of the Term the Company has not
offered to extend this Agreement upon the same or substantially similar terms
and conditions for an additional term of at least one year and reached agreement
with the Executive on such terms and conditions, the Company shall pay the
Executive the sum of $180,000; payment to be made within thirty (30) days from
the Date of Termination of employment, and the Company shall have no further
obligations to the Executive, except as may be provided under the express terms
of this Agreement or of any applicable pension or welfare plans or in accordance
with the survivorship provisions of Section 13 of this Agreement.
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7. LEGAL FEES; REIMBURSEMENT OF CERTAIN EXPENSES
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The Company shall promptly reimburse the Executive for the reasonable
legal fees and expenses incurred by the Executive in connection with enforcing
or defending any right or benefit of the Executive pursuant to this Agreement or
instruments related thereto; provided that the Company shall have no obligation
to reimburse the Executive for any such fees and expenses unless the resolution
of any action taken by the Executive to enforce such right is in favor of the
Executive. In addition, the Company hereby agrees that the amount of any such
legal fees and expenses reimbursed to the Executive in connection with enforcing
any right or benefit provided to the Executive by the Company pursuant to or in
accordance with this Agreement shall not be taken into account by the Company in
determining the aggregate compensation paid or payable to the Executive under
this Agreement.
8. INDEMNIFICATION
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The Company shall indemnify the Executive (and his legal
representatives), unless expressly prohibited by applicable law, against all
losses, claims, damages, liabilities, costs, charges and expenses incurred or
sustained by him or his legal representatives in connection with any action,
suit or proceeding to which he (or his legal representatives) may be made a
party by reason of his being or having been a director, officer or employee of
the Company (including payment of expenses in advance of the final disposition
of the proceeding). The Company further agrees, upon demand by the Executive,
promptly to reimburse the Executive for, or pay, any loss, claim, damage,
liability or expense, unless expressly prohibited by applicable law, to which
the Company has agreed to indemnify the Executive pursuant to Sections 7 and 8
hereof. If any action, suit or proceeding is brought or threatened against the
Executive in respect of which indemnity may be sought against the Company
pursuant to the foregoing, the Executive shall notify the Company promptly in
writing of the institution of such action, suit or proceeding. Such action,
suit or proceeding shall be defended by and be under the exclusive control of
the Company and its counsel; except that the Executive shall have the right to
designate separate counsel, acceptable to the Executive in his sole discretion,
and, to the extent of a conflict of interest with the Company, the right to
direct, control and supervise the Executive's defense of such action, suit or
proceeding.
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9. TAXES
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The Company shall deduct from all amounts payable under this Agreement
all federal, state, local and other taxes required by law to be withheld with
respect to such payments.
10. CONFIDENTIALITY AND NONCOMPETITION
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(a) Unless otherwise required by law or judicial process, the
Executive shall keep confidential all confidential information known to the
Executive concerning the Company and its businesses during his employment with
the Company and for the shorter of three (3) years following the termination of
the Executive's employment with the Company or until such information is
publicly disclosed by the Company or otherwise becomes publicly disclosed other
than through the Executive's actions; provided, that the Executive shall provide
notice to the Company in advance of any disclosure required by law or judicial
process in a timely manner to permit the Company to oppose such compelled
disclosure.
(b) The Executive agrees that during his employment with the
Company and for a period of one (1) year thereafter he shall not, directly or
indirectly, as a principal, officer, director, employee or in any other capacity
whatsoever, without the prior written consent of the Company, engage in, or be
or become interested or acquire any ownership of any kind in, or become
associated with, or make loans or advance property to any person engaged in or
about to engage in, any business activity that is in substantial competition (in
excess of 15% of net sales of the business) with any of the businesses engaged
in by the Company during the Term in any of the geographic areas in which such
businesses are then conducted by the Company or have been conducted by the
Company during the twelve months preceding the termination of the Executive's
employment. Nothing in this Agreement shall prevent the Executive from making or
holding any investment in any amount in securities traded on any national
securities exchange or traded in the over the counter market, provided said
investments do not exceed one percent (1%) of the issued and outstanding stock
of any one such corporation.
11. SUCCESSORS; BINDING AGREEMENT
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(a) This Agreement shall be binding upon and inure to the benefit
of the Company and any successor of the Company, including, without limitation,
any corporation or corporations acquiring directly or indirectly all or a
substantial portion of the stock, business or assets of the Company, whether by
merger, consolidation, sale or otherwise (and such successor shall thereafter be
deemed the "Company" for the purposes of this Agreement).
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(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amounts would be
still payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided hereunder, shall be paid in accordance with the terms
of this Agreement to the Executive's devisee, legatee, or other beneficiary or,
if there be no such beneficiary, to the Executive's estate.
12. NOTICE
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For purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given (i) when hand delivered, (ii) when sent if sent
by overnight mail, overnight courier or facsimile transmission or (iii) when
mailed by United States certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
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James E. Barch
2043 Mammoth Ct.
Evergreen, CO 80439
If to the Company:
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Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239
Attention: Board of Directors
c/o Corporate Secretary
(with a copy to the attention of General
Counsel at the same address)
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. SURVIVORSHIP
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The respective rights and obligations of the parties hereunder set
forth in Sections 6, 7, 8, 9, and 10 of this Agreement shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
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14. REPRESENTATIONS AND WARRANTIES
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The Company represents and warrants that (a) it is fully authorized
and empowered to enter into this Agreement and that its Board has approved the
terms of this Agreement, (b) the execution of this Agreement and the performance
of its obligations under this Agreement shall not violate or result in a breach
of the terms of any material agreement to which the Company is a party or by
which it is bound, (c) no approval by any governmental authority or body is
required for it to enter into this Agreement, and (d) this Agreement is valid,
binding and enforceable against the Company in accordance with its terms, except
to the extent affected or limited by applicable bankruptcy laws or other
statutes governing the rights of creditors generally and any regulations or
interpretations thereof. The Executive represents and warrants that his
execution of this Agreement and his performance of his duties and
responsibilities under this Agreement shall not violate or result in a breach of
the terms of any material agreement to which he is a party or by which he is
bound.
15. MISCELLANEOUS
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(a) Entire Agreement. The parties hereto agree that this Agreement
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and the Stock Option Agreement referred to in Section 4(d) hereof contain the
entire understanding and agreement between them, and supersedes all prior
understandings and agreements between the parties respecting the employment by
the Company of the Executive, and that the provisions of this Agreement may not
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the parties hereto. Nothing contained herein
shall supersede or otherwise modify the rights and obligations of the Company or
the Executive under the Stock Option Agreement. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
(b) Waiver. No waiver by either party hereto at any time of any
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breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
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(c) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of laws principles thereof.
16. VALIDITY
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The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision or provisions of this Agreement, which shall remain in full force and
effect.
17. COUNTERPARTS
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused its name to be subscribed
to this Agreement by its duly authorized representative and the Executive has
executed this Agreement as of the date and the year first above written.
SAMSONITE CORPORATION
By: /s/ R. R. Nicolosi
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Print Name: Richard R. Nicolosi
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Title: President & CEO
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/s/ James E. Barch
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James E. Barch
14