Executive Bonus Agreement - Samsonite Corp.
AGREEMENT (this "Agreement") made as of May , 1996, by and
between SAMSONITE CORPORATION, a Delaware corporation (the "Company"), and
[ ] (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that assuring the continuity of senior management, including the
Executive, is important to the continued success of the Company; and
WHEREAS, the Board desires to provide additional incentives to
assure that the Executive will remain employed by the Company for at least
three (3) years from the date hereof and to provide for certain other
contingencies.
NOW, THEREFORE, in consideration of the foregoing and of the
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. STAY BONUS. (a) If the Executive remains continually employed
by the Company or its subsidiaries from the date hereof through the date (the
"Stay Date") which is the earlier of the third anniversary of the date hereof
and the first anniversary of a Change of Control (as defined below), then the
Company shall issue to the Executive not later than the thirtieth (30th) day
following the Stay Date, as a one-time bonus (the "Stay Bonus"), 38,889
shares (the "Bonus Shares") of the Company's common stock, par value $.01 per
share ("Common Stock"); PROVIDED that if the Executive's employment with the
Company is terminated prior to the Stay Date (i) by reason of death or (ii)
by the Executive for Good Reason or (iii) by the Company other than for Cause
or Disability, then notwithstanding such termination of employment, the
Company shall pay the Stay Bonus to the Executive not later than the
thirtieth (30th) day following such termination of employment. If the
Executive's employment is terminated pursuant to the foregoing proviso, the
Stay Bonus shall be payable, at the option of the Company, either in the form
of (x) the Bonus Shares or (y) cash in an amount equal to the aggregate Fair
Market Value (as
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defined below) of the Bonus Shares as of the Date of Termination (as defined
in the Employment Agreement (the "Employment Agreement"), effective as of May
1, 1995, between the Company and the Executive). For all purposes hereof,
the Bonus Shares shall include the amount of Common Stock issuable pursuant
to this Section 1, as adjusted or changed pursuant to Section 4 hereof.
(b) As used herein, the terms "Good Reason" and "Cause" have the
respective meanings given to such terms in the Employment Agreement,
"Disability" means a determination of the Board (or any duly authorized
committee thereof) described in Section 5(b) of the Employment Agreement and
the "Fair Market Value" of the Common Stock (or other securities or property
then constituting the Bonus Shares), as of the Date of Termination, (i) in
the case of Common Stock or any other security, shall be determined with
reference to (1) the closing sales price of such security on the national
securities exchange on which such security is principally traded, on the next
preceding date on which there was a sale of such stock on such exchange, or
(2) if such security is not listed or admitted to trading on any such
exchange, the closing price as reported by the Nasdaq Stock Market for the
last preceding date on which there was a sale of such security on such
exchange, or (3) if such security is not then listed on a national securities
exchange or on the Nasdaq Stock Market, the average of the highest reported
bid and lowest reported asked prices for such security as reported by the
National Association of Securities Dealers, Inc. Automated Quotations
("NASDAQ") system for the last preceding date on which such bid and asked
prices were reported, and (ii) in the case of a security that is not then
listed on any securities exchange or prices therefor are not then quoted in
the NASDAQ system and in the case of any other property, such value shall be
determined in good faith by the Board (or any duly authorized committee
thereof).
2. ACCELERATED VESTING OF STOCK OPTIONS. If a Change of Control
occurs, then all options to purchase common stock of the Company granted to
the Executive by the Company prior to the date hereof shall vest on the first
anniversary of the date on which such Change of Control occurs (to the extent
such options shall not have otherwise vested as of such accelerated vesting
date), notwithstanding anything to the contrary contained in the
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Company's 1995 Stock Option Plan (the "Plan") or in any agreement (the "Stock
Option Agreement") between the Company and the Executive governing such
options, provided that the Executive remains continually employed by the
Company or its subsidiaries from the date hereof through such first
anniversary date. The term of such options and all other provisions of such
options (including, but not limited to, provisions governing vesting (to the
extent such provisions would result in earlier vesting), expiration,
termination and exercisability) as set forth in the Plan and the Stock Option
Agreement shall remain in full force and effect.
As used herein, "Change of Control" means (a) any sale, transfer or
other conveyance (whether directly, or indirectly through a merger,
consolidation or similar transaction), or series of related sales, transfers
or other conveyances, of the outstanding capital stock of the Company
pursuant to which any person (or group of affiliated persons) other than an
Excluded Person, becomes the beneficial owner of more than 50% of the
outstanding common stock of the Company or (b) any sale, transfer or other
conveyance of all or substantially all of the Company's assets to any person
(or group of affiliated persons) other than to an Excluded Person. For
purposes of the foregoing definition, "Excluded Person" means and includes
(i) Apollo Investment Fund, L.P. ("Apollo"), any of its affiliates, and, so
long as Apollo or an affiliate of Apollo controls the right to vote the
securities in question, any partner, shareholder or trustee of any of them,
(ii) any corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of stock
of the Company and (iii) the Company or any subsidiary of the Company.
3. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing contained in this
Agreement shall confer upon the Executive the right to continue in the employ
of the Company or to be entitled to any right or benefit not set forth in
this Agreement or to interfere with or limit in any way the right of the
Company to terminate the Executive's employment with the Company.
4. CERTAIN ADJUSTMENTS. The amount of Common Stock comprising the
Bonus Shares shall be adjusted, and the Bonus Shares shall be changed into
the kind and
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amount of capital stock, other securities, money and/or property in lieu of
Common Stock, upon the occurrence of certain events in accordance with the
provisions of paragraphs (a), (b) and (c) below.
(a) In case of any recapitalization or capital reorganization of
the Company or any reclassification of the outstanding Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination), or in
case of any consolidation or merger of the Company with or into another
corporation (other than a merger with another corporation in which the
Company is the surviving corporation and that does not result in any
reclassification of or change in the outstanding Common Stock (other than a
change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination)), or in case of
any sale or transfer to another corporation of the property of the Company as
an entirety or substantially as an entirety, then the kind and amount of
shares of capital stock, other securities, money and/or property (the
"Transaction Consideration") receivable in respect of each share of Common
Stock upon such recapitalization, reorganization, reclassification,
consolidation, merger, sale or transfer shall thereafter be deliverable in
lieu of each Bonus Share theretofore issuable in payment of the Stay Bonus.
The intent of this paragraph is that the kind and amount of capital stock,
other securities, money and/or property deliverable pursuant to this
paragraph shall be the same as if the Bonus Shares were outstanding
immediately prior to the transaction giving rise to the payment of the
Transaction Consideration and such Transaction Consideration were deposited
in trust for the ratable benefit of the Executive and other employees of the
Company with which the Company has entered into agreements similar to this
Agreement; PROVIDED that no interest shall be deemed to have been paid in
respect of any cash constituting a part of the Transaction Consideration or
any cash, income or profits received in respect of any Transaction
Consideration. The provisions of this paragraph (a) shall similarly apply to
successive recapitalizations, reorganizations, reclassifications,
consolidations, mergers, sales and transfers.
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(b) If the Company shall subdivide or combine its outstanding
shares of Common Stock, (i) in the case of a subdivision of shares, the
number of Bonus Shares issuable in payment of the Stay Bonus shall be
proportionately increased (as at the effective date of such subdivision or,
if the Company shall take a record of holders of its Common Stock for the
purpose of so subdividing, as at the applicable record date, whichever is
earlier) to reflect the increase in the total number of shares of Common
Stock outstanding as a result of such subdivision, or (ii) in the case of a
combination of shares, the number of Bonus Shares issuable in payment of the
Stay Bonus shall be proportionately reduced (as at the effective date of such
combination or, if the Company shall take a record of holders of its Common
Stock for the purpose of so combining, as at the applicable record date,
whichever is earlier) to reflect the reduction in the total number of shares
of Common Stock outstanding as a result of such combination. In the event
that an adjustment pursuant to this paragraph (b) is made as of the record
date for purposes of any subdivision or combination and such subdivision or
combination is not so made, the number of Bonus Shares issuable in payment of
the Stay Bonus shall again be adjusted to be the number of Bonus Shares that
would then be issuable in payment of the Stay Bonus if such record date had
not been fixed.
(c) If the Company shall pay a dividend on, or make any other
distribution to the holders of, its outstanding Common Stock in shares of its
Common Stock, the number of Bonus Shares issuable in payment of the Stay
Bonus shall be adjusted, as of the date the Company shall take a record of
the holders of Common Stock for the purpose of receiving such dividend or
other distribution (or if no such record is taken, as of the date of such
payment or other distribution), to that number determined by multiplying the
number of Bonus Shares issuable in payment of the Stay Bonus in effect
immediately prior to such record date (or if no such record is taken,
immediately prior to such payment or other distribution), by a fraction (i)
the numerator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution; PROVIDED that
if the foregoing adjustment is as of a record date for such dividend or
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other distribution and such dividend or distribution is not so paid or made,
the number of Bonus Shares issuable in payment of the Stay Bonus shall again
be adjusted to be the number of Bonus Shares issuable in payment of the Stay
Bonus that would then be in effect if such record date had not been fixed.
5. REGISTRATION RIGHTS. If the Stay Bonus is paid in the form of
Common Stock and the Company has not filed and caused to be effective a
registration statement on Form S-8 with respect to such shares of Common
Stock, then at the request of the Executive, the Company shall promptly file
and cause to be effective a registration statement on an appropriate form
selected by the Company (which may include Form S-8) in order to permit the
public resale of such shares of Common Stock by the Executive; PROVIDED that
the Company shall have no such obligation to file and cause such registration
statement to become effective if in the opinion of counsel to the Company
registration under the Securities Act of 1933 is not then required in order
to permit the public sale of such shares by the Executive.
6. TAXES. 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. In addition, the Company
shall have the right to require the Executive to pay to the Company in cash
the amount of any federal, state, local and foreign income and other taxes
that the Company may be required to withhold before delivering to the
Executive a certificate or certificates representing the Bonus Shares.
7. SUCCESSORS; BINDING AGREEMENT. (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 person acquiring directly or
indirectly all or substantially all of the 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 repre-
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sentatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
8. NOTICE. 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: (a) if to the
Executive, to the then current address set forth in the employee payroll
records of the Company and (b) if to the Company, to Samsonite Corporation,
12000 East Forty-Fifth Avenue, Denver, Colorado 80239-3018, Attention: Board
of Directors c/o Corporate Secretary (in each case, with a copy to: Gregory
A. Fernicola, Esq., Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue,
New York, NY 10022) or to such other address as any party may have furnished
to the other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
9. MISCELLANEOUS. (a) The parties hereto agree that this
Agreement contains the entire understanding and agreement between them with
respect to the subject matter hereof, and supersedes all prior understandings
and agreements between the parties respecting such subject matter, 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. 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. The
descriptive headings of the several sections and paragraphs contained herein
have been inserted for convenience of reference only and shall in no way
limit or otherwise affect the meaning hereof.
(b) 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.
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(c) Except as expressly provided in Section 2 hereof, nothing
contained in this Agreement shall in any way affect the respective rights and
obligations of the parties hereto contained in any other agreement between
the parties hereto, including, but not limited to, the Employment Agreement
or any future employment agreement between the Company and the Executive.
Any Stay Bonus to which the Executive is entitled hereunder is not in lieu of
salary or other compensation for services rendered by the Executive to the
Company.
(d) The validity, interpretation, construction and 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.
(e) Any action required to be taken under this Agreement within a
certain number of days shall be taken within that number of calendar days;
PROVIDED that if the last day for taking such action falls on a weekend or a
holiday, the period during which such action may be taken shall be
automatically extended to the next business day.
(f) 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.
(g) This Agreement may be executed in more than one counterpart,
each of which shall be deemed to be an original but both of which together
shall constitute one and the same instrument.
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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:
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Name:
Title:
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[ ]
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