Employment Agreement - Samsonite Corp. and Richard H. Wiley
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of June 15, 2001,
(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
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
The term of this Agreement (the "Term") shall begin on February 1,
2001 and shall continue for successive one-year periods (each a "Contact Year")
ending on January 31, 2002 and January 31 of each year thereafter; provided that
the Term shall end on the last day of a Contract Year if the Company gives the
Executive written notice of its intention not to extend this Agreement (a
"Non-Renewal Notice") no less than six (6) months prior to the end of such
Contract Year. The Executive's employment hereunder shall terminate at the end
of the Term, unless sooner terminated pursuant to Section 5.
3. POSITION AND DUTIES
(a) The Executive shall serve as a Senior Vice President and Chief
Financial Officer of the Company, shall report to the Chief Executive Officer of
the Company (the "CEO") and shall perform the duties and services prescribed
herein and as may be prescribed from time to time by 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) 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
(a) SALARY. During the period of the Executive's employment
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. Effective February 1, 2001, the Base
Salary shall be payable at the rate of $300,000 per annum. 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
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. If the Executive relocates his
principal residence at the request of the Company, the Company shall reimburse
the Executive for the expenses of such relocation to the extent provided in the
Company's corporate relocation policy as in effect on October 14, 1996. The
Executive shall furnish the Company with evidence that all such expenses covered
by this Section 4(b) were incurred as the Company may from time to time
reasonably request.
(c) OTHER BENEFITS. The Executive 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
residing in the United States who receive equity-based compensation, and shall
be provided, without limitation, with the use of a Company provided automobile
in accordance
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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 residing in the United States 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
annual incentive bonus (the "Incentive Bonus") in respect of each fiscal year of
the Company that ends during the Term (each, a "Reference Year"), subject to the
provisions of Section 6. For each Reference Year ending after January 31, 2001,
the Incentive Bonus shall consist of two parts, an EBITDA Target Bonus
(comprising 75% of the Incentive Bonus) and an Individual Performance Bonus
(comprising 25% of the Incentive Bonus), both of which shall be calculated as a
percentage of annual Base Salary, as set forth below. It is contemplated that
the Executive's Incentive Bonus for the relevant Reference Year will equal 50%
of the Executive's annual Base Salary, if 100% of the targeted EBITDA and 100%
of the targeted individual performance are achieved.
(i) The EBITDA Target Bonus is intended to reflect an assessment of
the financial performance of the Company on a consolidated basis. The
Board, in consultation with the CEO, shall determine the EBITDA target for
each Reference Year (the "Annual EBITDA Target"), promptly after the
business plan for such Reference Year is presented to, and approved by, the
Board (such business plan, the "Business Plan"). The Executive shall be
informed of the Annual EBITDA Target promptly after it is determined by the
Board. It is understood that the Annual EBITDA Target for the relevant
Reference Year will be based on the Business Plan for such Reference Year,
and will represent a realistic and achievable forecast that is not intended
to be unduly conservative or aggressive. Notwithstanding the foregoing, the
Annual EBITDA Target for the relevant Reference Year shall include the
EBITDA of the Company's non-U.S. operations at the exchange rate specified
in the Business Plan for such Reference Year, and shall eliminate the
effect of any realized or unrealized hedging gains and/or losses reflected
in the Business Plan. The Board shall have the right, acting unilaterally
and in good faith, to adjust any Annual EBITDA Target upon the occurrence
of any acquisition, disposition or other significant event, that was not
contemplated at the time that such target was determined. "EBITDA" means,
for the relevant Reference Year, the Company's consolidated operating
earnings, plus depreciation and amortization (as reflected in the Company's
audited financial statements), adjusted so that it is calculated on the
same basis as the Annual EBITDA Target for such Reference Year (including,
without limitation, the exchange rate calculation referred to above);
provided that EBITDA shall exclude extraordinary
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gains and/or losses and gains and/or losses from the sale of assets outside
of the ordinary course of business, unless such gains and/or losses were
reflected in the Business Plan. The "EBITDA Attainment Percentage" means,
for the relevant Reference Year, the quotient obtained by dividing EBITDA
by the Annual EBITDA Target.
(ii) The EBITDA Target Bonus for the relevant Reference Year shall be
that percentage of the Executive's annual Base Salary set forth in the
right-hand column of the following table directly opposite the EBITDA
Attainment Percentage set forth in the left-hand column of said table.
"ABS" refers to the Executive's Base Salary actually paid or payable during
the Reference Year for which the Incentive Bonus is being calculated.
<Caption>
EBITDA Attainment % % of ABS
Less than 90 0
90 9.38
91 12.19
92 15.00
93 17.81
94 20.63
95 23.44
96 26.25
97 29.06
98 31.88
99 34.69
100 37.50
101 38.06
102 38.63
103 39.19
104 39.75
105 40.31
106 40.88
107 41.44
108 42.00
109 42.56
110 43.13
111 44.44
112 45.75
113 47.06
114 48.38
115 49.69
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116 51.00
117 52.31
118 53.63
119 54.94
120 56.25
Greater than 120 56.25
If the calculation of an EBITDA Attainment Percentage results in a
whole percentage number plus a fraction, then the EBITDA Attainment
Percentage shall be rounded up to the next whole percentage number shown in
the foregoing tables if that fraction is .50 or greater and down to the
next whole percentage number shown in the foregoing tables is that fraction
is .49 or less.
(iii) The Individual Performance Bonus is intended to reflect an
assessment of the Executive's individual job performance in the areas of
the business for which the Executive has significant management
responsibility. The Board, in consultation with the CEO, shall identify any
specific financial and non-financial goals on which the Executive's
performance will be judged (in addition to overall job performance, as
described above) for the Reference Year, and the Executive shall be
informed of such specific goals no later than the time that he is informed
of the Annual EBITDA Target for such Reference Year. The Board, in
consultation with the CEO, shall determine the amount of the Executive's
Individual Performance Bonus for each Reference Year, based on the extent
to which, in the good faith judgment of the Board, the Executive has
succeeded in achieving (or exceeding) the level of performance reasonably
expected by the Board to be achieved by the Company's senior executives
(such level, including specific goals for the relevant Reference Year, if
any, the "Annual Performance Target"); provided that the Individual
Performance Bonus shall be (x) 0, if the Executive achieves less than 90%
of the Annual Performance Target, (y) 12.50% of ABS, if the Executive
achieves 100% of the Annual Performance Target and (z) up to 18.75% of ABS,
if the Executive substantially exceeds the Annual Performance Target. It is
understood that the Company expects a high level of commitment and
performance from its senior executives, and the Executive acknowledges that
the assessment of the Executive's performance is likely to depend on
subjective judgments by the Board, in consultation with the CEO. The
Executive agrees that the determination by the Board with respect to the
Executive's Individual Performance Bonus shall be conclusive for all
purposes, so long as such determination shall be made in good faith.
(iv) Each Incentive Bonus (including the EBITDA Target Bonus and the
Individual Performance 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 10-K for the Company, or if the Company is not
required to file a Form 10-K, not later
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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
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
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
The Executive's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. The Executive's employment hereunder shall terminate upon
his death.
(b) DISABILITY. If the Board determines in good faith, based on
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
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
misappropriation 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")
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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 judgment 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
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 on January 31, 2001, including, but not limited to, any material
reduction in such position, duties or responsibilities or material change in his
title or (iii) the relocation by the Company of its executive offices to a
location outside the United States, in each case of clauses (ii) through (iii)
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).
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
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
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, or (iv) if the Company has given timely
Non-Renewal Notice in accordance with the provisions of Section 2 and the
Executive's employment is not
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terminated pursuant to Sections 5(a), (b), (c) or (d), the day following the end
of the Term. Except as provided in and subject to Section 6 hereof, the Company
shall not have any obligation to Executive for salary continuation, severance or
termination pay upon termination of this Agreement.
6. COMPENSATION UPON TERMINATION
(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 only be entitled to an Incentive Bonus as
provided in Section 6(c).
(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, or if the Company has given timely
Non-Renewal Notice in accordance with the provisions of Section 2 and the
Executive's employment terminates at the end of the Term, 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:
(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, and
(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 (except as provided in Section 6(c)), a sum equal to
eighteen (18) months of Base Salary; provided, however, in the event the
Company has given timely Non-Renewal Notice in accordance with the
provisions of Section 2 and the Executive's employment terminates at the
end of the Term, the amount of Base Salary paid to the Executive between
the date of such Non-Renewal Notice and the Date of Termination shall
constitute a credit against and shall be subtracted from the eighteen (18)
months of Base Salary provided for in this Section 6(b)(ii).
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
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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 until the
end of the then current Contract Year, 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 the Executive's
continued participation in such plans shall be continued pursuant to this
sentence only to the extent permissible under the general terms and provisions
of such plans and applicable law; and further provided that the foregoing shall
not be construed so as to deprive the Executive of the right to continue
benefits under COBRA or other applicable laws and regulations.
(c) Notwithstanding the provisions of Sections 6(a) and (b), the
Executive shall be eligible to receive an Incentive Bonus for a Reference Year
only if the Executive is employed by the Company through the end of such
Reference Year. If the Date of Termination occurs after the end of a Reference
Year and prior to the determination of whether the EBITDA Target Bonus and/or
Individual Performance Bonus for such Reference Year were earned, such EBITDA
Target Bonus and/or Individual Performance Bonus shall be payable if, and to the
extent that, it is determined that such bonuses were earned in accordance with
the provisions of Section 4(d) hereof, and such bonuses, if any, shall be paid
to the Executive at the time specified in Section 4(d)(iv).
(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
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
The Company shall indemnify the Executive (and his legal
representatives), unless expressly prohibited by applicable law, against all
losses, claims, damages, liabilities,
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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, 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
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
(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, 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
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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
(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.
12. NOTICE
For purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given (i) when hand delivered, (ii) when sent if sent
by overnight mail, overnight courier or facsimile transmission or (iii) when
mailed by United States certified mail, return receipt requested, postage
prepaid, addressed as follows:
IF TO THE EXECUTIVE:
Richard H. Wiley
9480 East Hidden Hills Lane
Littleton, Colorado 80124
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IF TO THE COMPANY:
Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239-3018
Attention: Board of Directors
(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
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
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 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
(a) ENTIRE AGREEMENT. The parties hereto agree that this Agreement,
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,
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(iii) the Nonqualified Stock Option Agreement dated effective as of
the 1st day of February, 1997,
(iv) Amendment to Stock Option Agreement executed as of August 21,
1998, amending Option Agreement dated October 29, 1996,
(v) Amendment to Stock Option Agreement executed as of August 21,
1998, amending Option Agreement dated February 1, 1997,
(vi) Amendment to Stock Option Agreement executed as of July 16, 1998,
amending Option Agreement of March 28, 1996,
(vii) Nonqualified Stock Option Agreement effective as of July 15,
1998,
(viii) Stock Option Agreement dated as of November 12, 1999,
(ix) Stock Option Agreement dated as of March 24, 1999, and
(x) Stock Option Agreement dated as of February 8, 2000
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
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of laws principles thereof.
16. VALIDITY
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.
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17. COUNTERPARTS
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.
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 RICHARD H. WILEY
By /s/ Luc Van Nevel /s/ Richard H. Wiley
----------------------------- ------------------------
Name: Luc Van Nevel
----------------------------
Title: Chief Executive Officer
and President
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