Stock Option Agreement - Samsonite Corp. and Larry Ross
SAMSONITE CORPORATION
STOCK OPTION AGREEMENT
This Agreement, dated as of October 23, 2000, is between SAMSONITE
CORPORATION, a Delaware corporation (the "Company"), and Larry Ross (the
"Employee").
The stock options granted hereunder are awarded under the Company's FY 1999
Stock Option and Incentive Award Plan ("1999 Plan") and are subject to the terms
thereof.
1. Grant. The Company confirms that the Employee has been granted,
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effective October 23, 2000 (the "Date of Grant"), the right to purchase (the
"Options") from the Company an aggregate of 10,000 shares of the Company's
common stock, par value $.01 per share ("Common Stock"). The Options constitute
Nonqualified Stock Options.
2. Exercise Price. The initial exercise price per share (the "Exercise
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Price") for the Options is $3.031.
3. Non-transferability. The Options may not be assigned, transferred or
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disposed of, or pledged or hypothecated in any way, and may not be subject to
execution, attachment or other process, other than by will or by the laws of
descent and distribution. During the Employee's lifetime, the Options may be
exercised only by the Employee.
4. Term and Vesting. (a) The Options will remain outstanding (subject
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to vesting and exercisability) during a period of 10 years from the Date of
Grant (the "Option Term"). Twenty percent of the Options will vest on the first
April 30th that is not less than 6 months after the Date of Grant and an
additional twenty percent of the Options shall vest on each April 30th
thereafter until all the Options are fully vested, so long as the Employee is
continually employed by the Company from the Date of Grant through each such
vesting date. Except as provided in this Section 4 and Section 5, Options that
have vested will remain exercisable in whole or in part until the expiration of
the Option Term. The Employee has no rights as a stockholder of the Company
with respect to any shares of Common Stock underlying the Options until the
shares have been issued to the Employee upon the exercise of the Options.
(b) If (1) the Employee's employment with the Company is terminated by the
Company within one year after a Change of Control (defined below) and (2) such
termination occurred for any reason other than for Cause (defined below),
Disability (defined below) or death of the Employee or for the failure of the
Employee to perform the Employee's duties at the level reasonably expected for
the Employee's position and consistent with standards applied to the Employee
prior to the Change of Control (any such termination, a "Change of Control
Termination"), then all unvested Options and any other options to purchase the
Company's securities granted to the Employee prior to the date hereof (which
pursuant to the terms of such options could vest at the time of such Change
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of Control Termination) will automatically vest. All options that have vested
prior to the occurrence of a Change of Control Termination and all Options that
vest as a result of the Change of Control Termination will remain exercisable
until the earlier to occur of (a) the 90/th/ day following the date of such
termination or (b) the expiration of the Option Term. For purposes of the
preceding sentence, the terms "Cause" and "Disability" have the meanings set
forth below, except that, with respect to any options granted to the Employee
prior to the date hereof, the definitions of such terms contained in the stock
option agreements evidencing such options will govern. For purposes of this
Agreement, a "Change of Control" shall mean the occurrence of any of the
following events: (1) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
or "group" (within the meaning of Rule 13d-1 under the Exchange Act), other than
a Permitted Holder (as defined below), becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined voting power
of the then outstanding securities of the Company; (2) the stockholders of the
Company approve an agreement for the sale or disposition by the Company,
including a disposition by means of a merger, consolidation or similar
transaction, of all or substantially all of the Company's assets, other than to
a Permitted Holder; or (3) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (the "Board") (together with any new directors whose
election by the Board was approved by a vote of a majority of the Company's
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board then in
office. A transaction or series of transactions which give rise to more than
one of the events described in clauses (1), (2) and (3) of the immediately
preceding sentence shall be deemed to constitute only one Change of Control
which shall be deemed to occur upon the occurrence of the first such event to
occur. As used herein, "Permitted Holder" means and includes (x) Apollo
Investment Fund, L.P. ("Apollo"), Artemis America Partnership ("Artemis"), any
of the respective affiliates (as such term is defined in Rule 1-02 of Regulation
S-X under the Securities Act of 1933), and, so long as Apollo, Artemis or an
affiliate of Apollo or Artemis controls the right to vote the securities in
question, any partner, shareholder or trustee of any of them and (y) 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.
5. Termination. (a) Cause. If the Employee is terminated from
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employment with the Company for Cause, then all the Options (whether vested or
unvested) will automatically terminate and be canceled without any action on the
part of the Company on the date that employment is terminated. For purposes of
this Agreement, "Cause" means (1) the Employee's engaging in willful misconduct
that is injurious to the Company, (2) the Employee's embezzlement or
misappropriation of funds or property of the Company or the Employee's
conviction of a felony or the entrance of a plea of guilty by the Employee to a
felony or (3) the failure or refusal by the Employee to devote the Employee's
full business time and attention to the performance of the Employee's duties and
responsibilities in connection with the Employee's employment or any other
breach by the Employee of the terms of the Employee's employment in any material
respect. No act, or failure to act, on the Employee's part will be considered
willful unless done, or omitted to be done,
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by the Employee not in good faith and without reasonable belief that the
Employee's action or omission was in the best interest of the Company.
(b) Disability. If the Employee is terminated from employment with the
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Company by reason of Disability, then all unvested Options will automatically
terminate and be canceled without any action on the part of the Company on the
effective date of termination. All Options that have vested prior to that date
will remain exercisable until the earlier to occur of (1) the first anniversary
of that date or (2) the expiration of the Option Term. For purposes of this
Agreement, "Disability" means that the Board determines in good faith, based on
medical evidence acceptable to it, that the Employee has become physically or
mentally disabled or incapacitated for 90 days during any period of 180
consecutive days to the extent that the Employee is unable to perform the
Employee's duties.
(c) Death. If the Employee dies while employed by the Company, all
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unvested Options will automatically terminate and be canceled without any action
on the part of the Company on the date of death. Following the Employee's
death, the Employee's executors, administrators, legatees or distributees may
exercise the Options that have vested prior to the date of death until the
earlier to occur of (1) the first anniversary of that date or (2) the expiration
of the Option Term.
(d) Other Terminations. If the Employee's employment with the Company is
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terminated other than for a reason described in paragraph (a), (b) or (c) of
this Section 5, then all unvested Options will automatically terminate and be
canceled without any action on the part of the Company on the date of
termination. All Options that have vested prior to that date will remain
exercisable until the earlier to occur of (1) the 90/th/ day following such date
or (2) the expiration of the Option Term.
(e) Extension After Certain Terminations. If the Employee's employment
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with the Company is terminated other than for a reason described in paragraph
(a), (b) or (c) of this Section 5 and the Employee dies or becomes Disabled
within 90 days after termination (said Disability being deemed to have occurred
on the first day of the 90 days referenced in Section 5(b) above), then the
Employee's executors, administrators, legatees or distributees may exercise the
Options, to the extent vested and exercisable as of the date of termination,
until the earlier to occur of (1) the first anniversary of the date of death or
Disability or (2) the expiration of the Option Term.
6. Adjustments. The exercise price and the number of shares purchasable
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upon exercise of the Options may be adjusted by the Compensation Committee of
the Board in accordance with Section 5 of the 1999 Plan upon the occurrence of
certain corporate actions that may affect the Common Stock.
7. Method of Exercise of Options. (a) The Options will be exercisable
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by notice (an "Exercise Notice") and payment to the Company in accordance with
the procedure prescribed herein; provided, that the aggregate Exercise Price
with respect to any one such exercise will not be less than $10,000, unless the
exercise represents an exercise of all Options that are vested and exercisable
as of the date of the exercise. If the Employee fails to accept delivery of and
pay for all
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or any part of the number of shares specified in the Exercise Notice upon tender
or delivery thereof, the Employee's right to exercise the Options with respect
to the undelivered shares may be terminated in the sole discretion of the
Company's Compensation Committee.
(b) Each Exercise Notice will (1) state the number of shares in respect of
which Options are being exercised, (2) be accompanied by payment as provided in
paragraph (c) below and (3) be signed by the person or persons entitled to
exercise the Options. If Options are being exercised by any person or persons
other than the Employee, the Exercise Notice will be accompanied by proof,
satisfactory to the Company and its counsel, of the right of the person or
persons to exercise the Options.
(c) Payment of the Exercise Price will be made by delivering to the Company
any one or a combination of (1) a certified or bank cashier's check payable to
the Company or its order or a wire transfer directly to an account specified by
the Company, (2) one or more certificates evidencing shares of Common Stock
owned by the Employee immediately prior to the exercise, together with a duly
executed stock power, having an aggregate Fair Market Value (defined below) on
the date on which the Exercise Notice is given equal to the aggregate Exercise
Price or (3) a copy of irrevocable instructions to a registered broker/dealer to
deliver promptly to the Company an amount of proceeds from the sale of shares of
Common Stock to be issued pursuant to the Options being exercised or of a loan
made with respect to shares of Common Stock to be issued pursuant to the Options
being exercised sufficient, in either case, to pay the Exercise Price.
(d) The certificate or certificates representing shares of Common Stock to
be issued upon exercise of the Options will be registered in the name of the
person or persons exercising the Options, or, if the Options are exercised by
the Employee and the Employee so requests in the applicable Exercise Notice, in
the name of the Employee and the Employee's spouse, jointly, with right of
survivorship. The certificate or certificates will be delivered within 10 days
after receipt of payment and compliance by the Employee; provided, that in the
case of clause (3) of the first sentence of Section 7(c), the Company will not
make delivery of the certificate or certificates until payment is actually
received from the broker/dealer.
(e) The Company will have no obligation to issue or deliver fractional
shares of Common Stock upon exercise of the Options but may, in its sole
discretion, elect to do so. In lieu of issuing any fractional share, the Company
will pay to the person exercising the Options, promptly following exercise, an
amount in cash equal to the Fair Market Value of the fraction of a share as of
the date of exercise. "Fair Market Value" as of any date means (1) the closing
sales price per share of Common Stock on the national securities exchange on
which the stock is principally traded, on the next preceding date on which there
was a sale of the stock on the exchange, (2) if the shares of Common Stock are
not listed or admitted to trading on any exchange, the closing price as reported
by the Nasdaq Stock Market for the last preceding date on which there was a sale
of the stock on that market, (3) if the shares of Common Stock are 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 the
shares of Common Stock as reported by the National Association of Securities
Dealers, Inc.
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Automated Quotations ("NASDAQ") system for the last preceding date on which the
bid and asked prices were reported or (4) if the shares of Common Stock are not
then listed on any securities exchange or prices therefor are not then quoted in
the NASDAQ system, the value determined in good faith by the Company's
Compensation Committee.
8. Non-Competition and Confidentiality. (a) During employment with the
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Company and for one year after termination thereof, the Employee will not,
directly or indirectly, as a principal, officer, director, employee or in any
other capacity whatsoever, without prior written consent of the Company,
engage in any activity with, or provide services to, any person or entity
engaged in, or about to engage in, any business activity that is competitive
with the business then engaged in by the Company, in any geographic area in
which the Company's business is then conducted or has been conducted during the
twelve months preceding the termination of the Employee's employment with the
Company; provided that, if the scope of employment of the Employee during the
twelve months preceding the termination of the Employee's employment with the
Company related solely to business conducted by the Company in a specific
geographic area or areas, then following such termination the scope of this non-
compete provision shall be limited to the same geographic area or areas. The
Employee may make or hold any investment in securities of a competitive business
traded on a national securities exchange or traded in the over the counter
market, provided the investment does not exceed 1% of the issued and outstanding
stock of the competitive business.
(b) Unless otherwise required by law or judicial process, the Employee
shall retain in the strictest confidence all confidential matters of the
Company, including, without limitation, "know how", trade secrets, customer
lists, pricing policies, operational methods, technical processes, formulae,
inventions and research projects and other business affairs of the Company
learned by the Employee heretofore or hereafter and shall not disclose them to
anyone outside of the Company, either during or after the Employee's employment
with the Company, except in the course of performing the Employee's duties as an
employee of the Company or with the Company's express written consent; provided,
that the Employee 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.
(c) The Employee agrees that, if any provision of paragraphs (a) or (b) of
this Section is breached, monetary damages would be difficult, if not
impossible, to calculate and that injunctive relief is the only appropriate
remedy. If a breach of any provision of paragraphs (a) or (b) of this Section is
alleged to have occurred, the Employee by his or her execution of this Agreement
agrees to the entry of a temporary restraining order against him or her in
regard to this Section until such time that a determination is made as to
whether a breach has occurred. The Employee further agrees that, if a court of
competent jurisdiction determines or if a stipulation is entered into that the
Employee has breached any provision of paragraphs (a) or (b) of this Section, a
permanent injunction shall issue prohibiting the Employee from any further
breach thereof. The Employee agrees that the Company may refuse to allow the
exercise of any otherwise vested Options in the event of an alleged breach by
the Employee of any provision of paragraphs (a) or (b) of this Section, that
these Options
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will be terminated and canceled upon determination of a breach and that the
Company is not liable for the gain or loss by the Employee due to the increase
or decrease of the fair market value of the Common Stock during any period in
which the Company may have refused to accept exercise instructions pending final
determination of the Employee's breach of this Agreement.
9. No Right To Continued Employment. Nothing in this Agreement confers
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upon the Employee the right to continue in the employ of the Company, entitles
the Employee to any right or benefit not set forth in this Agreement or
interferes with or limits in any way the right of the Company to terminate the
Employee's employment.
10. Withholding Taxes. The Company may require the Employee (or such
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other person, if any, who has the right to exercise the Options) 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 Employee (or the other person) a certificate or certificates representing
shares of Common Stock. The Employee may elect to have Common Stock issuable
upon the exercise of any Options, having a Fair Market Value on the day
immediately preceding the date on which the certificates are delivered equal to
the amount of the withholding obligation, be withheld by the Company in
satisfaction of this obligation.
11. Approval of Counsel. Any exercise of Options and the issuance and
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delivery of shares of Common Stock is subject to approval by the Company's
counsel of all legal matters, including compliance with the requirements of the
Securities Act of 1933, as amended (the"Securities Act"), and the Securities
Exchange Act of 1934, as amended, the requirements of any stock exchange upon
which the Common Stock may then be listed and any applicable state securities or
"blue sky" laws.
12. Certificates. The certificates evidencing the shares of Common Stock
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issued upon exercise of the Options will bear a legend (unless the Company
requires otherwise) stating:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL
FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
13. Registration. Prior to the vesting date of any Options granted under
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this Agreement, the Company will file a registration statement on Form S-8
registering the issuance of the Common Stock underlying the Options, including a
"resale prospectus" as contemplated by Form S-8 to permit the public resale by
the Employee, and will use its reasonable best efforts to maintain the
effectiveness of this registration statement for so long as an effective
registration statement is required for the public sale by the Employee of the
Common Stock underlying the Options.
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14. Notices. All notices, demands and other communications with respect
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to this Agreement will be in writing and be deemed to have been duly given (1)
when hand delivered, (2) when sent, if sent by overnight mail, overnight courier
or facsimile transmission or (3) when mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239-3018
Attention: Corporate Secretary
All notices to the Employee or other person or persons entitled to exercise
the Options will be addressed to the Employee or the other person or persons at
the then current address of the Employee contained in the employee payroll
records of the Company. Anyone to whom a notice may be given under this
Agreement may designate a new address by notice to that effect.
15. Benefits. This Agreement will inure to the benefit of and be binding
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upon each successor and assign of the Company. All obligations imposed upon the
Employee and all rights granted to the Company under this Agreement will be
binding upon the Employee and, to the extent provided in this Agreement, the
Employee's heirs, legal representatives and successors. No other person has any
rights under this Agreement.
16. Severability. If any one or more provisions of this Agreement is
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deemed to be illegal or unenforceable, the illegality or unenforceability will
not affect the validity and enforceability of the remaining legal and
enforceable provisions, which will be construed as if such illegal or
unenforceable provision or provisions had not been inserted.
17. Entire Agreement. This Agreement contains the entire understanding
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and agreement between the parties and supersedes all prior understandings and
agreements between the parties respecting the subject matter of this Agreement.
This Agreement may not be modified, waived or discharged unless agreed in
writing signed by the parties.
18. Waiver. No waiver by either party of any breach by the other party of
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this Agreement will be deemed a waiver of similar or dissimilar breaches at the
same, prior or subsequent time.
19. Governing Law. This Agreement will be construed and governed in
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accordance with the laws of the State of New York, without regard to New York's
conflicts of law principles.
20. Time Periods. Any action required to be taken under this Agreement
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within a certain number of days must be taken within that number of calendar
days; provided, that if the last day for taking an action falls on a weekend or
a holiday, the period during which the action may be taken will be automatically
extended to the next business day.
21. Counterparts. This Agreement may be executed in counterparts. Each
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counterpart
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is deemed to be an original, but both together constitute one and the same
instrument.
22. Compliance. The Employee will abide by laws concerning insider
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trading and the policies and decisions of the Company's management in all
matters concerning the Options.
SAMSONITE CORPORATION
By: /s/ Richard H. Wiley
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Printed Name: Richard H. Wiley
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Title: Chief Financial Officer
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EMPLOYEE
By: /s/ L.C. Ross
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Printed Name: L.C. Ross
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