Employment Agreement - Samsonite GmbH and Karlheinz Tretter
SAMSONITE GMBH
EMPLOYMENT AGREEMENT
BY AND BETWEEN:
The company Samsonite GmbH (hereinafter, the "Company"), with registered
office at 5000 Koln, 1 Hogenstaufenring 57a, a company organized under the
laws of Germany, represented by its sole shareholder,
Samsonite Europe, N.V., with its principal office at Westerring 17, B-
9700 Oudenaarde, a company organized under the laws of Belgium, which
in turn is represented by its director, Mr. Luc Van Nevel,
AND
Mr. Karlheinz Tretter, domiciled at 61462 Konigstein im Taunus,
Holderingstrasse 3, hereinafter the "Executive."
WITNESSETH
WHEREAS, the Company desires to retain the services of the Executive and to
enter into this Employment Agreement as of the Effective Date (as defined in
Article 2 below); and
WHEREAS, the Executive is willing to serve the Company under the terms and
conditions herein provided;
NOW, 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. ENGAGEMENT
----------
The Company engages the services of the Executive and the Executive accepts
such engagement on the terms and conditions set forth herein.
2. TERM
----
This Employment Agreement shall come into effect as of the first day of
February 1998 (the "Effective Date") for an indefinite term.
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3. FUNCTION
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(a) The Executive agrees to serve as Geschaftsfuhrer of Samsonite GmbH. In
this capacity he shall perform such duties and services customary for his
position in addition to those as may be prescribed from time to time by the
shareholders' meeting.
(b) The Executive shall perform such duties to the best of his ability and
in a diligent and proper manner.
(c) The Parties expressly agree that the Company is entitled, if the
economical or structural needs of the Company so require, to entrust the
Executive with other tasks and/or to request him to fulfill a similar function
either alternatively or cumulatively in a group company, taking into account his
qualifications and competence and insofar as such modification has no negative
influence on the remuneration of the Executive. Such modification can never be
considered as a unilateral breach of this Employment Agreement.
(d) Nothing in this Employment Agreement shall affect the Executive's duty
of loyalty and duty of care to the Company and its subsidiaries as provided
under applicable laws.
4. WORKING HOURS
-------------
(a) Except during customary vacation periods and periods of illness, and
due to his activities for other group companies, the Executive shall, during his
engagement hereunder, devote an average of forty percent (40%) of his business
time and attention to the performance of the execution of his functions and
services for the Company.
(b) The Executive's remuneration provided for under this Employment
Agreement covers his entire work as far as it is attributable to the Company
including compensation for overtime work and work on weekends and public
holidays.
5. COMPENSATION AND RELATED MATTERS
--------------------------------
(a) During the period of the Executive's engagement hereunder, the Company
shall compensate the Executive in equal installments in accordance with its
normal payroll practices but not less frequently than monthly. At the date of
this Employment Agreement, the gross annual salary of the Executive, including a
thirteenth month and holiday pay (the "Base Compensation"), is fixed at
DM237,119, which shall become EURO120,167 upon consent being granted by the
German Federal Reserve Board for the payment of compensation in EURO currency by
German employers to German employees.
(b) The payments of Base Compensation hereunder shall not in any way limit
or reduce any other obligation of the Company hereunder, and no other
compensation,
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benefit or payment hereunder shall in any way limit or reduce the obligation of
the Company to pay the Executive's Base Compensation hereunder. The Company, at
any time and from time to time, may increase (but not reduce) the Base
Compensation payable, and any increase in the Base Compensation shall become
effective at the time indicated by the Company without the need for an amendment
to this Employment Agreement.
(c) The Executive agrees that the Company may deduct from all amounts
payable under this Employment Agreement all withholding taxes and social
security contributions required by law to be withheld with respect to such
payments.
(d) The net salary of the Executive shall be paid by transfer into his bank
account opened at the following bank:Frankfurter Volksbank; and with the bank
account number:300 216 820 /BLZ 5019 00 00.
(e) The Executive will also be entitled to an Annual Adjustment. Each
year, the Company shall make a lump sum adjustment to the Executive's Base
Compensation (the "Annual Adjustment") for that year only, equal to a percentage
of the Base Compensation. The Annual Adjustment shall consist of a Target
Adjustment and a Project Adjustment. The definition and the determination of the
Adjustments are set out in a separate agreement between parties, which will be
reviewed on a yearly basis.
(f) In conformity with the European Regulation 1408/71 of 14 June 1971 on
social security regulations in Europe, the social security will be paid by
Samsonite GmbH in Germany. The social security will be governed by German law
and the Company will be paying the employer's part of the social security
contributions.
6. OTHER BENEFITS
--------------
(a) The Executive will continue to participate in the existing extra legal
group insurance policy actually in force with Victoria (GV 5700458/32).
(b) The Company also agrees to pay a contribution of 300 DM per month to an
individual life insurance contract concluded by the Executive.
(c) Nothing in this Employment Agreement shall preclude the Company from
amending or terminating any such employee benefit plan, policy or practice,
whether now or hereinafter in effect.
7. COMPANY CAR
-----------
The Executive shall also be entitled to the use of a company car. It
concerns a company car of the type Mercedes 300 E-range or an equivalent type.
The Executive is entitled to use the car for private use and all costs relating
to the personal use shall be
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borne by the Company. For the advantage of all kind resulting from this private
use the necessary legal tax withholdings will take place monthly at the occasion
of the calculation of the Executive's salary.
8. REIMBURSEMENT OF EXPENSES
-------------------------
The Executive is entitled to receive prompt reimbursement of all reasonable
expenses incurred by the Executive in performing services for the Company,
including all expenses of travel and living expenses while away from home on
business or at the request of and in the service of the Company, in accordance
with the policies and procedures established by the Company from time to time.
The Executive shall, according to Samsonite's existing procedures and policies,
furnish the Company with evidence that such expenses were incurred.
9. ANNUAL HOLIDAYS
---------------
(a) The Executive shall be entitled to the number of holidays per entire
worked year as is normally provided per the policies of Samsonite GmbH for an
executive. These holidays shall be taken on dates to be agreed with the
Company.
(b) The Executive is also entitled to the legal public holidays recognized
by Samsonite GmbH.
10. SUSPENSION OF THIS EMPLOYMENT AGREEMENT
---------------------------------------
The Executive shall observe the following obligations in the event that
this Employment Agreement is suspended as a result of sickness or accident:
(a) immediately inform the competent person of his inability to work; and
(b) justify his inability to work by producing a medical certificate which
must be sent to the Company within two working days of the start of the
inability to work or its prolongation.
11. CONFIDENTIALITY
---------------
(a) Notwithstanding statutory obligations in this respect, and unless
otherwise required by law or judicial process, the Executive shall keep
confidential all confidential information known to the Executive concerning the
Company or any of its affiliated group companies (verbundene Unternehmen), or
the business of any of them, both during and after his engagement hereunder,
until such information:
(i) is publicly disclosed by the Company or any of its affiliated
group companies (verbundene Unternehmen), or
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(ii) otherwise becomes publicly disclosed other than through the
Executive's actions.
(b) Notwithstanding statutory obligations in this respect, 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.
(c) Notwithstanding statutory obligations in this respect, all documents,
notes and material relating to affairs of the Company or any of its affiliated
group companies (verbundene Unternehmen), including those prepared by the
Executive, shall remain at all times the property of the Company. The Executive
undertakes to return anything belonging to the Company upon his departure.
12. TERMINATION OF THIS EMPLOYMENT AGREEMENT
----------------------------------------
(a) The Company shall have the right to terminate this Employment Agreement
by giving the statutory period of notice, if one of the following causes occurs:
(i) the engaging by the Executive in willful misconduct that is
materially injurious to the Company or any of its affiliated
group companies (verbundene Unternehmen);
(ii) the embezzlement or misappropriation of funds or property of the
Company or any of its affiliated group companies (verbundene
Unternehmen) by the Executive;
(iii) the conviction of the Executive of a crime punishable by
incarceration for one year or more, or the entrance of a plea of
guilty by the Executive to such a crime;
(iv) the failure or refusal by the Executive to devote his business
time and attention to the performance of his duties and
responsibilities hereunder; or
(v) any other breach by the Executive of this Employment 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.
(b) For purposes of Article 12 above, 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
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terminated for one of the causes set out under Article 12.(a)(i), 12.(a)(ii),
12.(a)(iii), 12.(a)(iv), or 12.(a)(v) above, 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,
(ii) a reasonable opportunity for the Executive, together with his
counsel, to be heard before a delegate of the Company's
shareholders (the "Delegate"), and
(iii) a notice of termination stating that, in the good faith
judgement of the Delegate, the Executive was guilty of conduct
set forth in Article 12.(a)(i), 12.(a)(ii), 12.(a)(iii),
12.(a)(iv), or 12.(a)(v) above, and specifying the particulars
thereof in reasonable detail.
(c) Upon receipt of the Preliminary Notice, the Executive shall have thirty
(30) days in which to appear before the Delegate with counsel, or to take such
other action as he may deem appropriate, and such thirty (30) day period is
hereby agreed to as a reasonable opportunity for the Executive to be heard.
(d) The right of each contractual party to terminate this Employment
Agreement for good and valid cause (wichtiger Grund) in accordance with Sect.
626 par (1), German Civil Code shall remain unaffected.
(e) If the conduct giving rise to termination of this agreement is good and
valid cause (wichtiger Grund) and is also described in Article 12.(a)(i),
12.(a)(ii), 12.(a)(iii), 12.(a)(iv), or 12.(a)(v) above, then termination shall
proceed as per Article 12 rather than as per Article 12(a).
(f) If the Executive has not engaged in conduct described in Article
12.(a)(i), 12.(a)(ii), 12.(a)(iii), 12.(a)(iv), or 12.(a)(v) above, then the
Executive shall have the right to terminate this Employment Agreement by giving
the statutory period of notice, if one of the following causes occurs:
(i) a failure by the Company to comply with any material provision of
this Employment Agreement that has not been cured within thirty
(30) days after written notice of such non-compliance has been
given by the Executive to the Company; or
(ii) the assignment to the Executive, without the consent of the
Executive, of duties inconsistent with the Executive's position,
duties or responsibilities as in effect immediately prior to the
Effective Date, including, but not limited to, any material
reduction in such position, duties or responsibilities, or a
material change in
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his title, other than a change in title which represents a
promotion within the Company or any of its affiliated group
companies (verbundene Unternehmen), or the assignment of
different or additional duties or responsibilities in connection
therewith.
(g) The Executive's election to terminate under Article 12.(f) above, shall
be made by giving notice of termination not later than sixty (60) days from, as
applicable, the date that the Company fails to cure a failure under Article
12.(f)(i) above, or the assignment of duties under Article 12.(f)(ii).
(h) Upon termination of this Employment Agreement at the initiative of the
Company for any reason other than either:
(i) a good and valid cause (wichtiger Grund) committed by the
Executive, or
(ii) one of the reasons set out in Article 12.(a)(i), 12.(a)(ii),
12.(a)(iii), 12.(a)(iv), or 12.(a)(v) above,
the Executive will be entitled to an indemnity upon termination, which amounts
to the greater of:
(A) the amount of the additional indemnity, provided for in the
Overall Agreement between the Executive and Samsonite
Corporation; and
(B) any amount which might be due to the Executive upon
termination of this Employment Agreement under local German
law.
(i) Upon termination of this Employment Agreement at the initiative of the
Company for a good and valid cause (wichtiger Grund) the Executive will not be
entitled to any indemnity.
(j) Upon termination of this Employment Agreement at the initiative of the
Company for one of the reasons set out in Article 12.(a)(i), 12.(a)(ii),
12.(a)(iii), 12.(a)(iv), or 12.(a)(v) above, the Executive will not be entitled
to any indemnity except for the continuing payment of his salary during the
statutory period of notice required under German law.
(k) If the Executive has not engaged in conduct which would be a good and
valid cause (wichtiger Grund) for the Company to terminate this Employment
Agreement, and has not engaged in conduct which is set forth in Article
12.(a)(i), 12.(a)(ii), 12.(a)(iii), 12.(a)(iv), or 12.(a)(v) above, then upon
termination of this Employment Agreement at the initiative of the Executive for
one of the reasons set out
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in Article 12.(f)(i) or 12.(f)(ii) above, the Executive will be entitled to an
indemnity upon termination which is equal to the greater of:
(i) the amount of the additional indemnity, provided for in the
Overall Agreement between the Executive and Samsonite
Corporation; and
(ii) any amount which might be due to the Executive upon termination
of this Employment Agreement under local German law.
(l) Upon termination of this Employment Agreement at the initiative of the
Executive for any reason which is neither a good and valid cause (wichtiger
Grund) nor one of the reasons set out in Article 12.(f)(i) or 12.(f)(ii) above,
the Executive will not be entitled to any indemnity except for that, if any,
which is mandatory under German law.
(m) The Company may terminate this Employment Agreement within the
applicable statutory notice period if the Executive is long-term disabled due to
illness or accident for a total of six (6) months during a period of twelve (12)
consecutive months, and if he is unable to fulfill his duties as a managing
director of the Company. In case of doubt about the long-term disability due to
illness or accident, an expertise shall be ascertained by a physician who shall
be selected by mutual agreement by both parties. If the parties cannot agree on
the person of the physician, the physician shall be appointed at either party's
request by the Physicians Professional Association (Arztekammer) of Koln.
(n) After notice is given by the Executive or by the Company, or after
suspending or revoking the Executive from his office as managing director, the
Company shall be entitled to release the Executive from his duties of service,
temporarily or definitively, whilst continuing to pay his Base Compensation.
Such period of release shall be offset from the Executive's remaining vacation
entitlement.
(o) For purposes of notice required under German local law, the Executive's
seniority shall include the periods of September, 1966 through September, 1981,
and from November, 1990, through February 1, 1998.
13. NON-COMPETITION
---------------
(a) During the period of this Employment Agreement, the Executive
undertakes not to become active for another company which competes with the
Company or any of its affiliated group companies (verbundene Unternehmen) either
in the Federal Republic of Germany or in any other Member States of the European
Union. During the period mentioned, and during the twelve months immediately
following termination of this Employment Agreement, the Executive also
undertakes not to engage in any competing business activity, directly or
indirectly, or to participate, directly or indirectly, in an enterprise which
competes with the Company or any of its
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affiliated group companies (verbundene Unternehmen), and not to work, directly
or indirectly, for a customer of the Company or any of its affiliated group
companies (verbundene Unternehmen), if such customer at the time of his leaving
the employ of the Company was, or during two proceeding years had been, a
customer of the Company or any of its affiliated group companies (verbundene
Unternehmen).
(b) As compensation for the imposed restrictions, the Company shall pay to
the Executive 50% of the remuneration, as last received by him pursuant to this
Employment Agreement (exclusive of indemnities and exclusive of any Annual
Adjustment), for the twelve months following the termination of this Employment
Agreement, in accordance with Section 74, para 2, of the German Commercial Code.
(c) To the extent permissible under statutory law, the Company will be
freed of this obligation in case it renounces adherence to the post contractual
competition restriction by giving written notice three months prior to the
termination of this Employment Agreement.
(d) Unless otherwise provided in this Employment Agreement, Section 74 et
seq., German Commercial Code, shall apply mutatis mutandis.
14. NOTICE
------
For purposes of this Employment Agreement, notices, demands and all other
communications provided for in this Employment Agreement shall be in writing and
shall be deemed to have been duly given (i) when delivered, if hand delivered,
(ii) when sent, if sent by overnight mail, overnight courier or facsimile
transmission or (iii) when mailed, if mailed by certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
-------------------
Karlheinz Tretter
Holderingstrasse 34
61462 Konigstein Im Taunus
Germany
If to the Company:
------------------
with a copy to:
Samsonite GmbH General Counsel
c/o Human Resources Department Samsonite Corporation
Samsonite Europe N.V. 11200 East Forty-Fifth Avenue
Westerring 17 Denver, Colorado 80239-3018
B-9700 Oudenaarde United States of America
Belgium
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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.
15. WAIVER
------
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
Employment 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.
16. VALIDITY
--------
The invalidity or unenforceability of any provision or provisions of this
Employment Agreement shall not affect the validity or enforceability of any
other provision or provisions of this Employment Agreement, which shall remain
in full force and effect.
17. APPLICABLE LAW - COMPETENT COURT
--------------------------------
The validity, interpretation, construction and performance of this
Employment Agreement shall be governed by German law, and any dispute arising
out of this Employment Agreement shall be dealt with by the Competent Courts
according to German applicable procedural rules.
18. LANGUAGE OF THIS EMPLOYMENT AGREEMENT
-------------------------------------
Each party to this Employment Agreement explicitly agrees and explicitly
recognizes the validity of this Employment Agreement being drafted in English.
In case the necessity for a translation into German of this Employment Agreement
would ever occur, the Company and the Executive shall agree jointly and in good
faith on the choice of a sworn translator.
19. ENTIRE AGREEMENT
----------------
This Employment Agreement contains the entire understanding between the
Company and the Executive and supersedes all prior employment agreements and
understandings, including, without limitation, the employment agreement dated
June 25, 1990 between the Company and the Executive.
20. COUNTERPARTS
------------
This Employment 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
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constitute one and the same instrument. Each party acknowledges having received
one copy of this Employment Agreement.
IN WITNESS WHEREOF, the Company has caused its name to be subscribed
to this Employment Agreement by its duly authorized representative and the
Executive has executed this Employment Agreement as of the date and the year
first above written.
Samsonite GmbH, represented The Executive
by its sole shareholder, "Read and approved"
Samsonite Europe N.V.
By: /s/ Luc Van Nevel /s/ Karlheinz Tretter
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Luc Van Nevel, as Director of Karlheinz Tretter (*)
Samsonite Europe, N.V.
(*) The signature of the Executive must be preceded by the hand-written
words: ("Read and approved").
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