Employment Agreement - Samsonite Corp. and Gary D. Ervick
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (this "Agreement"), effective as of September 10, 1996
(the "Effective Date"), by and between SAMSONITE CORPORATION, a Delaware
corporation (the "Company"), and GARY D. ERVICK (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,
automatically renewed for an additional one year term upon such third
anniversary, or the anniversary of the commencement of any renewal term, unless
terminated by either party upon at least ninety (90) days written notice.
3. POSITION AND DUTIES
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(a) The Executive shall serve as President, Samsonite Distributing
Company and shall perform such duties and services customary with such executive
position 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
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ability and in a diligent and proper manner. The Executive shall report directly
to the President of The Americas.
(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 $212,000 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
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be in 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 provide the relocation benefits set forth in the Samsonite
Relocation Policy - Transferred Employees (effective date July 1, 1988), and if
the Executive's house in Rhode Island does not sell within ninety (90) days of a
Company directed and approved listing for sale, the Company or a third party
engaged by the Company shall take responsibility for the house and its sale.
Regardless of how the house is sold, the Company shall pay the Executive the
difference between the sale price and the Executive's documented purchase price
and reasonable improvements (estimated to be approximately $565,000) less
applicable commission; provided that the Company's obligation in this sentence
shall be net of any mortgage debt on the house. Except as provided in this
Section 4(b), the Company shall have no obligation to reimburse the
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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 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 40,000 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 continued use of the Company provided automobile in
accordance with the Company's current policy for executive officers. Without
limiting the generality of the foregoing, upon confirmation by the Board, 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
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Incentive Bonus may, subject to the conditions set forth below, equal up to 120%
of the Executive's Qualified Base Salary. For the purpose of this Section 4(f),
the Executive's Qualified Base Salary shall mean 75% of his 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:
(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 Qualified 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 twenty percent (20%) 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 one hundred percent (100%).
(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) one hundred percent
(100%) plus (y) the product of twenty percent (20%) 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
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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
twenty percent (120%).
(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, 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 Qualified 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 twenty percent (120%)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 deter-
mined, 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 Pro-
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jects 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 conclu- sive for all purposes, provided that such determination shall
be made in good faith.
(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) Not withstanding the forgoing paragraphs of this Section 4(f), the
Executive shall be entitled to receive an Incentive Bonus for the full
Reference Year ending January 31, 1997 based upon the following:
a. Annual Salary of $212,000
b. 60% of Annual Salary if minimum performance levels attained,
75% of Annual Salary if target performance levels attained, and
90% of Annual Salary if maximum performance levels attained.
c. Three-quarters of the award shall be based upon the Incentive
Compensation Plan of American Tourister and one-quarter shall be based on
the Incentive Compensation Plan of the Company and its corporate
Incentive Plan goals.
(g) Vacation and other Absences. The Executive shall be entitled to the
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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.
(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.
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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 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 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
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(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 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.
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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 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 and provided that the Executive also shall receive, after the end of
the Company's fiscal year during which the Date of Termination occurs, a
payment in the amount equal to a pro-rata portion of any incentive bonus which
would have been payable to the Executive, if any, for that portion of the
fiscal year preceding the Date of Termination.
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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 or any one-year renewal term and at or prior to expiration of
the Term or any one-year renewal 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, the Company shall pay the Executive a sum
equal to 200% of the Base Salary; payment to be made within thirty (30) days
from the Date of Termination of employment and, after the end of the Company's
fiscal year during which the Date of Termination occurs, a payment equal to a
pro-rata portion of any incentive bonus which would have been payable to the
Executive, if any, for that portion of the fiscal year preceding the Date of
Termination. 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.
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.
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
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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 such luggage business)
with the business engaged in by the Company during the Term in any of the
geographic areas in which such business is then conducted by the Company or has
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).
(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:
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If to the Executive:
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Gary D. Ervick
95 Juniper Drive
East Greenwich, RI 02818
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.
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.
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15. MISCELLANEOUS
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(a) Entire Agreement. The parties hereto agree that this
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Agreement 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.
(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.
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<PAGE>
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/ Gary D. Ervick
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Gary D. Ervick
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