Employment Agreement - Samsonite Corp. and Richard H. Wiley
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, (this "Agreement") effective as of February 1,
1998 (the "Effective Date"), by and between SAMSONITE CORPORATION, a Delaware
corporation (the "Company"), and RICHARD H. WILEY, a resident of Colorado (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.
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. 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 January 31, 2002.
3. POSITION AND DUTIES
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(a) The Executive shall serve as a Senior Vice President of the
Company and shall perform such duties and services prescribed herein and as may
be prescribed from time to time by the Chief Executive Officer of the Company
(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 to the
best of his ability and in a diligent and proper manner.
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(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.
(d) At any time during the Term of this Agreement, if the Company has
a committee of senior executives to oversee the Company's operations, then the
Company shall cause the Executive to be a member of such committee.
4. COMPENSATION AND RELATED MATTERS
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(a) Salary. During the period of the Executive's employment
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hereunder, the Company 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 $200,000 per annum from the Effective Date until February 1, 1999, and
$250,000 per annum thereafter until the end of the Term. 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) 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, 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 furnish the
Company with evidence that such expenses were
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incurred as the Company may from time to time reasonably request.
(c) 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, without limitation, with the use of a Company provided
automobile in accordance with the Company's current policy for executive
officers. Without limiting the generality of the foregoing, 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 on the same terms and
conditions as are applicable to other senior executive officers of the Company
who receive equity-based compensation, provided that the amount of compensation
with respect to which benefits are determined under such plan shall be limited
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.
(d) 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, 1999. 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(d). The Incentive Bonus may, subject to
the conditions set forth below, equal up to 110% of $100,000, with respect to
the fiscal year ending January 31, 1999, and up to 110% of $125,000, with
respect to each other fiscal year ending during the Term. With respect to each
Reference Year, the Executive's Incentive Bonus shall consist of a Target
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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 said $100,000 or $125,000, as the case may be, 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;
(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
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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 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) With respect to each Reference Year ending after January 31,
1998, on or before March 15 of each such year, the Board, in consultation
with the CEO, shall determine the "Annual EBIT Target," the "Minimum EBIT
Target" and the "Maximum EBIT Target" for the Reference Year then current.
Promptly after such targets have been determined, the Company shall provide
written notice thereof to the Executive. The Annual EBIT Targets
determined by the Board shall be reasonably achievable in the good faith
judgment of the Board, it being understood that the Maximum EBIT Targets
determined by the Board shall generally reflect a more aggressive,
"stretch" budget, and the Minimum EBIT Targets determined by the Board
shall generally reflect an improvement over actual EBIT for the prior
Reference Year. 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(d), "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
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Reference Year shall be equitably adjusted by the Board (solely for the
purposes of Section 4(d)(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
forty percent (40%) of said $100,000 or $125,000, as the case may be, (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
the Reference Year in accordance with this subparagraph (iii), provided
that the Board may award a Project Bonus of between eighty percent (80%)
and one hundred twenty-five percent (125%) of the target amount based upon
its evaluation of the manner in which the Executive completes the Annual
Projects. The Company shall establish Annual Projects for each fiscal year
during the Term and shall provide the Executive with a written notice of
such Annual Projects, which shall describe such Annual Projects in
reasonable detail. The Annual Projects for each Reference Year ending
after January 31, 1998 shall be established on or before March 15 of such
year. The Annual Projects for each such fiscal year shall be developed
by the Board in consultation with the Executive, and shall, in the good
faith judgment of the Board, be reasonably achievable. The Executive
acknowledges that the Annual Projects 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 conclusive 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 the applicable performance goals have been met, and such
determination shall be made not later than 10 days following the filing of
a Form
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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.
(e) Vacations. The Executive shall be entitled to the number of paid
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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.
(f) 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.
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 misap-
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propriation 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 (as described in Section 3(b) of
this Agreement) 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 (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
inconsistent with the Executive's position, duties or responsibilities as in
effect immediately prior to the Effective Date, including, but not limited to,
any
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material reduction in such position, duties or responsibilities or material
change in his title or (iii) a relocation by the Company of the Executive's
office to a location outside a 30 mile radius of Denver, Colorado, which
relocation is made not as part of a relocation of the Company's executive
offices or (iv) the relocation by the Company of its executive offices to a
location outside a 30 mile radius of Denver, Colorado, which relocation is
part of a relocation of the Company's executive offices, in each case of clauses
(ii) through (iv) above, without the consent of the Executive. The Executive's
election to terminate under this Section 5(d) shall be made by giving 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) or (iv) above. Notwithstanding the provisions of clause (ii) of the
first sentence of this Section 5(d), a change in title which represents a
promotion and the assignment of different or additional duties or
responsibilities in connection therewith shall not constitute "Good Reason."
(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
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Company shall not have any obligation to Executive for salary continuation,
severance or termination pay upon termination of this Agreement.
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 of death and three calendar months
immediately following the month 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(d)
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(d) 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:
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(I) 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;
(II) 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 lesser of:
(a) $375,000 ($250,000 in the event of termination by the Executive
pursuant to Section 5(d)(iv) hereof) and
(b) the amount of the Executive's Base Salary which would have been
paid to the Executive for services from the Date of Termination
through the expiration of this Agreement had this Agreement not
been Terminated.
In addition to the foregoing, 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 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 the number of years (including partial years) then
remaining in the Term, 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 in the event of termination by Executive
pursuant to Section 5(d)(iv) hereof, the period of coverage hereunder shall not
exceed twelve (12) months from the Executive's termination of employment;
provided further 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.
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(c) In the event that this Agreement is continued in effect to the
end of the Term, 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.
(d) Any amounts paid pursuant to the provisions of Section 6(b) above
shall be in lieu of any amounts payable to Executive pursuant to any severance
or termination pay program maintained by the Company, and the Executive hereby
expressly waives and relinquishes all rights under any such programs.
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 of the Executive pursuant to this Agreement; 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 obtaining or 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,
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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 (unless such employment is
terminated by the Company pursuant to Section 5(c) without Cause or by the
Executive pursuant to Section 5(d) with Good Reason,
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provided that the Company does not contest that such termination was for Good
Reason), 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 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
the business) with any of the businesses engaged in by the Company during the
Term in any of the geographic areas in which such businesses are then conducted
by the Company or have 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, restructuring, reorganization, consolidation, division, 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.
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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:
If to the Executive:
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Richard H. Wiley
3920 South Tamarac Court
Denver, Colorado 80237
If to the Company:
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Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239-3018
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
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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) the 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.
15. MISCELLANEOUS
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(a) Entire Agreement. The parties hereto agree that this Agreement,
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together with:
(i) the Stock Option Agreement made as of the 28th day of March
1996,
(ii) the Nonqualified Stock Option Agreement dated effective as of
the 29th day of October, 1996 and
(iii) the Nonqualified Stock Option Agreement dated effective as of
the 1st day of February, 1997
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.
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
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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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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/ THOMAS R. SANDLER
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Name: Thomas R. Sandler
Title: Senior Vice President
/S/ RICHARD H. WILEY
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Richard H. Wiley
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