Stock Purchase Agreement - Samsonite Corp. and Richard R. Nicolosi
Richard R. Nicolosi
4408 Intracoastal Drive
Highland Beach, FL 33487
(407) 274-6046 phone
(407) 274-6047 fax
May 16, 1996
Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239
Dear Sirs:
1. PURCHASE OF COMMON STOCK FOR CASH. (a) Pursuant to the terms and
subject to the conditions set forth in this Letter Agreement, the undersigned
purchaser (the "Purchaser"), in reliance upon the representations, warranties
and agreements of Samsonite Corporation, a Delaware corporation (the "Company"),
contained herein, hereby subscribes for and agrees to purchase, and the Company,
in reliance upon the representations, warranties and agreements of the Purchaser
contained herein, hereby agrees to issue and sell to the Purchaser at the
Closing (as defined below), 55,000 shares (the "Shares") of Common Stock, par
value $.01 per share, of the Company at a price of $18.25 per share, or an
aggregate purchase price of $1,003,750.00 (the "Purchase Price").
(b) At the Closing, in consideration of the sale of the Shares to the
Purchaser, and against delivery to the Purchaser of a certificate representing
the Shares, the Purchaser shall deliver to the Company the Purchase Price, by
check payable to the Company or its order or by wire transfer of funds to an
account designated by the Company at least 24 hours prior to the Closing.
2. THE CLOSING. (a) The closing (the "Closing") of the purchase of the
Shares shall occur on June 15, 1996 or any other earlier date mutually
acceptable to the Company and the Purchaser.
(b) The Closing shall occur at the offices of Skadden, Arps, Slate,
Meagher & Flom, 919 Third Avenue, New York, New York 10022, or at such other
place as the Company and the Purchaser may mutually agree.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Purchaser as follows:
(a) the Company has full corporate power and authority to execute and
deliver this Letter Agreement and to perform its obligations hereunder, and this
Letter Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms;
(b) the Shares to be issued to the Purchaser pursuant to this Letter
Agreement, when issued, delivered and paid for in accordance
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with the terms hereof, will be duly and validly issued and fully paid and
nonassessable; and
(c) none of the execution, delivery or performance of this Letter
Agreement by the Company will conflict with the Company's Certificate of
Incorporation or By-Laws or result in any breach of any terms or provisions of,
or constitute a default under, any contract, agreement or instrument to which
the Company is a party or by which the Company or its property is bound.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Company as follows:
(a) The Purchaser is authorized to enter into this Agreement, to perform
his obligations hereunder and to consummate the transactions contemplated
hereby.
(b) The Purchaser is purchasing the Shares for the Purchaser's own account
and with no intention of distributing or reselling the Shares in any transaction
which would be in violation of the securities laws of the United States of
America or any state thereof, or in any transaction that would subject the
issuance and sale of the Shares pursuant to this Letter Agreement to the
registration requirements of the Securities Act of 1933 (the "Securities Act")
and applicable state securities laws. The Purchaser understands that the Shares
have not been registered under the Securities Act or the securities laws of any
state by reason of a specific exemption from the registration or qualification
provisions of the Securities Act or said securities laws, the availability of
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of the representations as expressed herein. The
Purchaser understands that, except to the extent set forth in the Registration
Rights Agreement, dated as of May 15, 1996, by and between the Company and the
Purchaser, the Company has no obligation to register the Shares under the
Securities Act or any state securities laws.
(c) The Purchaser acknowledges that the Shares must be held indefinitely
unless the Shares are so registered or an exemption from such registration is
available.
(d) The Purchaser understands that the Company has made no assurances with
respect to any secondary market for the Shares.
(e) The Purchaser has had an opportunity to discuss the business,
management and financial affairs of the Company and the terms and conditions of
an investment in the Shares with, and has had access to, the management of the
Company and he has had the opportunity to review the information set forth in
the Company's public filings and any other information requested by the
Purchaser.
(f) The Purchaser understands and acknowledges that the Company will be
relying upon the Purchaser's representations and warranties set forth herein in
offering and selling the Shares to him.
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(g) The Purchaser represents that the offering to him of the Shares was
made only through direct, personal communication between the undersigned
Purchaser and a representative of the Company and not through public
solicitation or advertising.
(h) The Purchaser did not retain or consult any "Purchaser
Representative," as such term is defined in Rule 501 of Regulation D promulgated
under the Securities Act.
(i) The Purchaser has such knowledge, experience and skill in evaluating
and investing in securities, based on actual participation in financial,
investment and business matters such that he is capable of evaluating the merits
and risks of an investment in the Shares, and has such knowledge, experience and
skill in financial and business matters that he is capable of evaluating the
merits and risks of the prospective investment in the Company and the
suitability of the Shares as an investment for himself.
(j) The Purchaser has not received, and is not relying on, any
representations or warranties from the Company or any other person, other than
those contained in this Letter Agreement.
(k) The Purchaser is able to bear the economic risk of an investment in
the Shares and has an adequate income independent of any income produced from an
investment in the Shares and has sufficient net worth to sustain a loss of all
of his investment in the Shares without economic hardship if such a loss should
occur.
5. RESTRICTIONS ON TRANSFERS; CERTAIN PERMITTED TRANSFERS. (a) The
Purchaser agrees that he will not sell, transfer, assign, pledge, hypothecate or
otherwise dispose of (each, a "transfer") the Shares, except:
(i) a transfer pursuant to an effective registration statement under
Securities Act; or
(ii) a transfer upon the death of the Purchaser or any Permitted
Transferee (as hereinafter defined) to his respective executors,
administrators, testamentary trustees, legatees or beneficiaries (the
"Purchaser's Estate"); or
(iii) a transfer made in compliance with the federal and all
applicable state securities laws to the Purchaser's spouse, parents or
direct lineal descendants or to a trust, the beneficiaries of which, or to
a corporation or partnership, the stockholders or limited or general
partners of which, include only the Purchaser and the Purchaser's spouse,
parents and/or direct lineal descendants (a "Purchaser's Trust"), or a
transfer made by such a Purchaser's Trust to the Purchaser; PROVIDED that
no transfer pursuant to subsection (a)(iii) of this Section 5 shall be
given effect on the books of the Company unless and until the transferee
shall agree in writing, in form and substance satisfactory to the Company,
to become, and becomes, bound by the representations and warranties and
restrictions on transfer applicable to a Purchaser contained in this Letter
Agreement. The Purchaser's Estate,
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any Purchaser's Trust and each person to whom the Shares may be transferred
pursuant to this Section 5 is hereinafter sometimes referred to as a
"Permitted Transferee"; or
(iv) a transfer to a person other than a Permitted Transferee;
PROVIDED that (A) such transfer is exempt from the registration
requirements of the Securities Act and any applicable state securities
laws, (B) if the Company so requests, the Company receives from the
transferor an unqualified opinion of counsel that such transfer may be
effected without registration under the Securities Act and any applicable
state securities laws, and (C) the Company consents to such transfer (which
consent shall not be unreasonably withheld) and the transferee shall agree
in writing, in form and substance satisfactory to the Company, to become,
and becomes, bound by the representations and warranties and restrictions
on transfer applicable to a Purchaser contained in this Letter Agreement;
PROVIDED, FURTHER, that this clause (C) shall not apply to any such
transfer pursuant to Rule 144 under the Securities Act; or
(v) a transfer to the Company.
(b) Each certificate representing the Shares issued to the Purchaser or to
a subsequent transferee shall include a legend in substantially the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER STATE SECURITIES
LAWS. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS SPECIFIED IN A LETTER AGREEMENT BETWEEN
THE COMPANY AND THE ORIGINAL PURCHASER OF THE SECURITIES EVIDENCED
HEREBY. A COPY OF SUCH CONDITIONS WILL BE FURNISHED BY THE COMPANY
TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE. THESE
SECURITIES MAY NOT BE RESOLD OR TRANSFERRED UNLESS SUCH CONDITIONS ARE
COMPLIED WITH AND UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
(c) Any purported transfer in violation of this Section 5 shall be null
and void and of no force or effect.
6. AMENDMENT. This Letter Agreement may be amended only by a written
instrument signed by the Company and the Purchaser.
7. NOTICES. All notices and other communications provided for herein
shall be dated and in writing and shall be deemed to have been duly given when
sent by registered or certified mail, return receipt requested, postage prepaid
and when received, if delivered personally, by facsimile or otherwise, to the
party to whom it is directed:
(a) If to the Company, to it at the following address:
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Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239
Attention: General Counsel
Facsimile No.: (303) 373-6300
(b) If to the Purchaser or any of the Purchaser's Permitted Transferees,
to the Purchaser at the address set forth above (or in the agreement signed by
such other person in accordance with Section 5 hereof),
(in each case, with a copy to Gregory A. Fernicola, Esq., at Skadden, Arps,
Slate, Meagher & Flom, 919 Third Avenue, New York, New York 10022 and to Howard
G. Kristol, Esq., at Reboul, MacMurray, Hewitt, Maynard & Kristol, 45
Rockefeller Plaza, New York, New York 10111) or at such other address as the
parties hereto shall have specified by notice in writing to the other parties
(PROVIDED, that such notice of change of address shall be deemed to have been
duly given only when actually received).
8. APPLICABLE LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAW.
IN WITNESS WHEREOF, the parties have executed this Letter Agreement
effective as of the date first above written.
PURCHASER:
/s/ Richard R. Nicolosi
------------------------------------
Richard R. Nicolosi
SAMSONITE CORPORATION
By: /s/ D. Michael Clayton
--------------------------------
Name: D. Michael Clayton
Title: Vice President - Legal
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EXHIBIT A
Richard R. Nicolosi (the "Purchaser") hereby represents and warrants to
the Company as follows:
(a) The Purchaser is authorized to enter into this Agreement, to
perform his obligations hereunder and to consummate the transactions
contemplated hereby.
(b) The Purchaser is purchasing the Shares for the Purchaser's own
account and with no intention of distributing or reselling the Shares in any
transaction which would be in violation of the securities laws of the United
States of America or any state thereof, or in any transaction that would
subject the issuance and sale of the Shares pursuant to this Letter Agreement
to the registration requirements of the Securities Act of 1933 (the
"Securities Act") and applicable state securities laws. The Purchaser
understands that the Shares have not been registered under the Securities Act
or the securities laws of any state by reason of a specific exemption from
the registration or qualification provisions of the Securities Act or said
securities laws, the availability of which depends upon, among other things,
the bona fide nature of the investment intent and the accuracy of the
representations as expressed herein. The Purchaser understands that, except
to the extent set forth in the Registration Rights Agreement, dated as of May
16, 1996, by and between the Company and the Purchaser, the Company has no
obligation to register the Shares under the Securities Act or any state
securities laws.
(c) The Purchaser acknowledges that the Shares must be held
indefinitely unless the Shares are so registered or an exemption from such
registration is available.
(d) The Purchaser understands that the Company has made no assurances
with respect to any secondary market for the Shares.
(e) The Purchaser has had an opportunity to discuss the business,
management and financial affairs of the Company and the terms and conditions
of an investment in the Shares with, and has had access to, the management of
the Company and he has had the opportunity to review the information set
forth in the Company's public filings and any other information requested by
the Purchaser.
(f) The Purchaser understands and acknowledges that the Company will be
relying upon the Purchaser's representations and warranties set forth herein
in offering and selling the Shares to him.
(g) The Purchaser represents that the offering to him of the Shares was
made only through direct, personal communication between the undersigned
Purchaser and a representative of the Company and not through public
solicitation or advertising.
(h) The Purchaser did not retain or consult any "Purchaser
Representative," as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act.
(i) The Purchaser has such knowledge, experience and skill in
evaluating and investing in securities, based on actual participation in
financial, investment and business matters such that he is capable of
evaluating the merits and risks of an investment in the Shares, and has such
knowledge, experience and skill in financial and business matters that he is
capable of evaluating the merits and risks of the prospective investment in
the Company and the suitability of the Shares as an investment for himself.
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(j) The Purchaser has not received, and is not relying on, any
representations or warranties from the Company or any other person, other
than those contained in this Letter Agreement.
(k) The Purchaser is able to bear the economic risk of an investment in
the Shares and has an adequate income independent of any income produced from
an investment in the Shares and has sufficient net worth to sustain a loss of
all of his investment in the Shares without economic hardship if such a loss
should occur.
(l) The Purchaser acknowledges that the certificates evidencing the
Shares will bear such restrictive legends deemed appropriate by the Company
based upon the advice of counsel.
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