<PAGE>
As filed with the Securities and Exchange Commission on June 7, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
SAMSONITE CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-3511556
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
11200 EAST 45TH AVENUE
DENVER, COLORADO 80239
(303) 373-2000
(Address, including zip code, and telephone number, including area code,
of Registrant's Principal Executive Offices)
---------------------
SAMSONITE CORPORATION 1995 STOCK OPTION AND INCENTIVE AWARD PLAN
(AS AMENDED IN 1996)
STOCK OPTION AGREEMENT FOR RICHARD R. NICOLOSI
STOCK OPTION AGREEMENT FOR STEVEN J. GREEN
SHARE OPTION AGREEMENT FOR STEVEN J. GREEN
STOCK OPTION PLAN AND AGREEMENT FOR GREGORY WM. HUNT
(Full title of the Plans)
---------------------
D. MICHAEL CLAYTON, ESQ.
SAMSONITE CORPORATION
11200 EAST 45TH AVENUE
DENVER, COLORADO 80239-3018
(303) 373-6174
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
---------------------
COPIES TO:
JEFFREY M. KNETSCH
BROWNSTEIN HYATT FARBER & STRICKLAND, P.C.
410 SEVENTEENTH STREET, 22ND FLOOR
DENVER, COLORADO 80202
(303) 534-6335
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share . . . 508,848 $18.1875 $9,254,673.00 $3,191.27
Common Stock, par value $.01 per share . . . 425,532 $18.25 $7,765,959.00 $2,677.92
Common Stock, par value $.01 per share . . . 400,000 $24.85 $9,940,000.00 $3,427.59
Common Stock, par value $.01 per share . . . 800,000 $32.85 $26,280,000.00 $9,062.07
Common Stock, par value $.01 per share . . . 653,668 $11.87 $7,759,039.16 $2,675.53
Common Stock, par value $.01 per share . . . 17,500 $11.14 $194,950.00 $67.22
Common Stock, par value $.01 per share . . . 276,134 $10.875 $3,002,957.25 $1,035.50
Common Stock, par value $.01 per shar. . . . 73,964 $12.875 $952,286.50 $328.37
Common Stock, par value $.01 per share . . . 191,054 $13.875 $2,650,874.25 $914.09
Total. . . . . . . . . . . . . . . . . . . 3,346,700 $67,800,739.16 $23,379.57
</TABLE>
(1) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act of 1933 (the "Act") as follows: (a) in the case of shares
of Common Stock which may be purchased upon the exercise of outstanding
options, the fee is calculated on the basis of the price at which the
options may be exercised, and (b) in the case of shares of Common Stock for
which awards have not yet been granted and the option price of which is
therefore unknown, the fee is calculated on the basis of the average of the
high and low price per share of Common Stock on the National Market System
of the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") as of June 3, 1996 (within 5 business days prior to
filing this Registration Statement).
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALES PURSUANT TO THE PLAN:
As soon as practicable after the effective date of this Registration
Statement.
This Registration Statement shall be deemed to cover securities resulting
from stock splits, stock dividends or similar transactions as provided by
Rule 416 of the Act.
<PAGE>
EXPLANATORY NOTE
In accordance with the instructional Note to Part 1 of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part 1 of Form S-8 has been omitted from this Registration Statement on
Form S-8 for offers of Common Stock of Samsonite Corporation (the "Company")
pursuant to the benefit plans referred to herein (the "Plans"). The prospectus
filed as part of this Registration Statement has been prepared in accordance
with the requirements of Form S-3 and may be used for reofferings and resales of
registered shares of Common Stock which may be issued in the future upon the
exercise of options or other awards granted under the Plans (hereinafter such
Prospectus will be referred to as the "Prospectus").
<PAGE>
PROSPECTUS
SAMSONITE CORPORATION
2,651,771 Shares of Common Stock
This Prospectus is being used in connection with the offering from time to
time of up to 2,651,771 shares (the "Shares") of common stock, $.01 par value
(the "Common Stock"), of Samsonite Corporation (the "Company") by certain
stockholders who may be deemed to be affiliates ("Selling Stockholders") of the
Company. The Company will not receive any of the proceeds from the sale of the
Shares.
The Shares may be sold from time to time by the Selling Stockholders or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), in the over-the-counter market or otherwise at prices and at
terms then prevailing or at prices related to the then current market price, or
in negotiated transactions. The Shares may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the Shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer for its account pursuant to this Prospectus; and (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers. In
effecting sales, brokers or dealers engaged by the Selling Stockholders may
arrange for other brokers or dealers to participate. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act") in connection with such sales. All discounts, commissions or fees
incurred in connection with the sale of the Shares will be paid by the Selling
Stockholders or by the purchasers of the Shares, except that the expenses of
preparing and filing this Prospectus and the related Registration Statement with
the Securities and Exchange Commission, and of registering or qualifying the
shares, will be paid by the Company.
The Common Stock of the Company is listed on The NASDAQ Market System under
the symbol SAMC.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
SEE RISK FACTORS FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED
BY PROSPECTIVE INVESTORS IN THE SHARES OFFERED HEREBY.
---------------------
The date of this Prospectus is
June 7, 1996
<PAGE>
No person is authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
made in this Prospectus, and any information or representation not contained
herein must not be relied upon as having been authorized by the Company or the
Selling Stockholders. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the Shares offered by
this Prospectus, nor does it constitute an offer to sell or a solicitation of
any offer to buy any Shares offered hereby to any person in any jurisdiction
where it is unlawful to make such an offer or solicitation to such person.
Neither the delivery of this Prospectus nor any sale hereunder shall under any
circumstances create any implication that information contained herein is
correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Reports and other information filed by the Company with the
Commission may be inspected and copies at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at:
75 Park Place, 14th Floor, New York, New York 10007 and Northwest Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material may be obtained upon written request addressed to the Commission at the
Public Reference Section, at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, the Common Stock is listed on NASDAQ and reports
and other information concerning the Company may also be inspected at the
offices of the National Association of Securities Dealers, Inc. at 1735 K
Street, N.W., Washington, D.C. 20006.
The Company has filed a registration statement (the "Registration
Statement") on Form S-8 with respect to the Shares offered hereby with the
Commission under the Act. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement, certain items of which are contained in schedules and
exhibits to the Registration Statement as permitted by the rules and regulations
of the Commission. Statements contained in this Prospectus as to the contents
of any agreement, instrument or other document referred to are not necessarily
complete. With respect to each such agreement, instrument or other document
filed as an exhibit to the Registration Statement, reference is made to the
exhibit for a more complete description of the matter involved, and each such
statement shall be deemed qualified in its entirety by such reference.
In addition, the Company will provide without charge to each person to whom
this Prospectus is delivered, upon either the written or oral request of such
person, the Annual Report on Form 10-K for the Company's latest fiscal year and
a copy of any or all of the documents incorporated herein by reference other
than exhibits to such documents. See "INCORPORATION OF DOCUMENTS BY REFERENCE."
Such requests should be directed to Samsonite Corporation, 11200 East 45th
Avenue, Denver, Colorado 80239-3018, Attention: Secretary.
INCORPORATION BY REFERENCE
The following document filed with the Commission by the Company is
incorporated by reference in this Prospectus: Annual Report on Form 10-K for
the fiscal year ended January 31, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
filing of a post-effective amendment indicating that all of the Shares offered
hereby have been sold or deregistering all of the Shares that at the time of
such post-effective amendment remain unsold, shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in any documents
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document, which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
2
<PAGE>
TABLE OF CONTENTS
THE COMPANY.................................................................. 4
RISK FACTORS................................................................. 4
SELLING STOCKHOLDERS......................................................... 5
PLAN OF DISTRIBUTION......................................................... 6
LEGAL MATTERS................................................................ 6
EXPERTS...................................................................... 7
3
<PAGE>
THE COMPANY
Samsonite Corporation is one of the world's largest manufacturers and
distributors of luggage, including softside and hardside suitcases, garment
bags, casual bags, business cases and other travel bags. The Company markets
the majority of its products under the SAMSONITE-Registered Trademark-, AMERICAN
TOURISTER-Registered Trademark- and LARK-Registered Trademark- brand names. The
Samsonite brand name enjoys worldwide recognition and is the leading brand of
luggage in the United States and Western Europe. In August 1993, the Company
purchased American Tourister, Inc. ("American Tourister"), which produces the
second best known brand of luggage in the United States. The Company is
actively introducing the American Tourister brand in Europe and other
international markets where American Tourister did not have a significant
presence prior to its acquisition by the Company. Samsonite and American
Tourister brand luggage products have been manufactured and sold continuously
since the 1930's.
RISK FACTORS
In addition to the other information set forth in this Prospectus,
investors should consider carefully the information set forth below before
making an investment in the Common Stork offered hereby.
LEVERAGE
At January 31, 1996, the Company had total indebtedness of $334.5 million
and total stockholders' equity of $25.1 million, and during fiscal 1996 earnings
from continuing operations before income taxes were insufficient to cover fixed
charges by $42.1 million, although earnings for such year were reduced by non-
cash charges of $89.9 million. The Company believes that its cash flow from
operations, together with its other available sources of liquidity, will be
adequate to make required payments of principal and interest on its
indebtedness, to permit anticipated capital expenditures and to fund working
capital requirements. If the Company is unable to generate sufficient cash flow
from operations in the future, it may be required to refinance all or a portion
of its existing indebtedness or to obtain additional financing. There can be no
assurance that any such refinancing would be possible or that any additional
financing could be obtained on terms that are acceptable to the Company.
INTERNATIONAL OPERATIONS
Approximately 44% of the Company's net sales and approximately 52% of the
Company's operating income (prior to amortization of intangibles) for fiscal
1996 were derived from operations conducted outside of the United States. The
Company's operations may be affected by economic, political and governmental
conditions in some of the countries where the Company has manufacturing
facilities and where its products are sourced or marketed. In addition, changes
in economic or political conditions in any of the countries in which the Company
operates could result in unfavorable exchange rates, new or additional currency
or exchange controls or other restrictions being imposed on the operations of
the Company, which could adversely affect the Company's financial condition or
results of operations.
RECENT OPERATING LOSSES
The Company has recently incurred operating losses due, in part, to
significant non-cash charges for depreciation and amortization resulting from
the application of SOP 90-7.
CONTINGENT OBLIGATIONS
As a result of various ownership changes, mergers and divestitures, the
financial condition of the Company (formerly known as Astrum International
Corp.) was such that as of March 1991 it could no longer service the interest
payments on its outstanding $527 million principal amount of 12.85% Senior
Subordinated Notes due 1997 (the "Pre-petition Notes") and its outstanding $698
million principal amount of 13.05% Subordinated Debentures due 1999 (the "Pre-
petition Debentures" and, together with the Pre-petition Notes, the "Pre-
petition Securities"), and in June 1992 an involuntary bankruptcy petition was
filed against the Company. At the time of the filing, the Company had assets of
approximately $921 million and liabilities in excess of $1.9 billion. In May
1993, the United
4
<PAGE>
States Bankruptcy Court for the Southern District of New York confirmed the
Company's Chapter 11 Plan of Reorganization (the "Plan").
The Plan provided for the resolution of all debts and claims against the
Company. At that time, the Company's Samsonite, Culligan and McGregor
businesses were operated in subsidiaries. The Company's bankruptcy
restructuring did not involve a change in management and none of the Company's
Samsonite, Culligan or McGregor subsidiaries was a debtor under any bankruptcy
proceeding or plan of reorganization. Pursuant to the Plan, approximately $342
million in cash, $500 million aggregate principal amount of senior secured notes
and 15 million shares of Common Stock were paid or issued by the Company to the
holders of the Pre-petition Securities in full satisfaction of their claims. In
addition, pursuant to the Plan, the holders of the Pre-petition Debentures
became entitled to beneficial interests in the Settlement Trust (as defined in
the Plan). The Company has recorded certain contingent obligations as a result
of the Plan. See Note 14 to the Company's consolidated financial statements for
the year ended January 31, 1996 incorporated herein by reference.
SELLING STOCKHOLDERS
The names of the Selling Stockholders who may be affiliates of the Company
and the positions, offices and other material relationships which each Selling
Stockholder has had with the Company since June 1, 1993 are as follows:
POSITION HELD OR RELATIONSHIP WITH THE
SELLING STOCKHOLDER COMPANY SINCE JUNE 1, 1993
- ------------------------ ---------------------------------------------
Steven J. Green Chairman, President, Chief Executive Officer
and Director until May 1996 and Significant
Stockholder
Richard R. Nicolosi President, Chief Executive Officer and
Director since May 1996
Thomas J. Leonard President, Samsonite - the Americas
Luc Van Nevel President, Samsonite International
Thomas R. Sandler Chief Financial Officer, Treasurer and
Secretary
Frank D. Steed President, Samsonite U.S.A.
Karlheinz Tretter Vice President and Managing Director of
Samsonite Europe, N.V.
Gary D. Ervick President, American Tourister Division
D. Michael Clayton General Counsel, Vice President - Legal and
Assistant Secretary
The following table sets forth for each Selling Stockholder listed above
the number of shares of Common Stock of each such Selling Stockholder which (1)
are issued and owned beneficially or of record as of June 7, 1996; (2) are not
issued, but may be acquired pursuant to the Plans; (3) are being offered
pursuant to the Registration Statement; and (4) are to be owned after
completion of the offering, assuming that all Shares offered hereby are sold:
5
<PAGE>
<TABLE>
<CAPTION>
AMOUNT OF SHARES
NUMBER OF SHARES TO BE OWNED AFTER
NUMBER OF ISSUED WHICH MAY BE SALES OF SHARES
SHARES OWNED AS OF ACQUIRED PURSUANT TO NUMBER OF SHARES REGISTERED
NAME JUNE 7, 1996 PLANS (a) TO BE OFFERED HEREUNDER
- ------------------------ --------------------- -------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Richard R. Nicolosi 115,000 425,532 425,532 115,000
Steven J. Green 889,450 1,853,668 1,853,668 889,450
Thomas J. Leonard -0- 98,619 98,619 -0-
Luc Van Nevel -0- 98,619 98,619 -0-
Thomas R. Sandler -0- 73,964 73,964 -0-
Frank D. Steed -0- 39,448 39,448 -0-
Karlheinz Tretter -0- 39,448 39,448 -0-
Gary D. Ervick -0- 12,895 12,895 -0-
D. Michael Clayton -0- 9,578 9,578 -0-
</TABLE>
(a) Shares underlay both vested and unvested options granted, some of
which options are currently exercisable.
The preceding table reflects all Selling Stockholders who are eligible to
reoffer and resell Shares, whether or not they have a present intent to do so.
There is no assurance that any of the Selling Stockholders will sell any or all
of the Shares offered by them hereunder. The inclusion in the foregoing table
of the individuals named therein shall not be deemed to be an admission that any
such individuals are "affiliates" of the Company.
This Prospectus may be amended or supplemented from time to time to add or
delete Selling Stockholders.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholders or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on the NASDAQ Market System, on the over-the-counter market or otherwise
at prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The Shares may be sold by one or
more of the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer for its account pursuant to this Prospectus; and
(c) ordinary brokerage transactions and transactions in which the broker
solicits purchases. In effecting sales, brokers or dealers engaged by the
Selling Stockholders may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from Selling
Stockholders in amounts to be negotiated immediately prior to the sale. Such
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" within the meaning of the Act in connection with such
sales. In addition, any securities covered by this Prospectus which qualify for
sale pursuant to Rule 144 under the Act may be sold under Rule 144 rather than
pursuant to this Prospectus. The Company will not receive any of the proceeds
from the sale of the Shares. The Company has paid the expenses of preparing this
Prospectus and the related Registration Statement. The Selling Stockholders
have been advised that they are subject to the applicable provisions of the
Exchange Act, including without limitation, Rules 10b-5, 10b-6 and 10b-7
thereunder.
LEGAL MATTERS
Legal matters with respect to Common Stock being offered hereby have been
passed upon for the Company by Brownstein Hyatt Farber & Strickland, P.C.,
Denver, Colorado.
6
<PAGE>
EXPERTS
The consolidated financial statements of the Company as of January 31, 1996
and 1995, and for the years ended January 31, 1996 and 1995, for the seven
months ended January 31, 1994, and for the five months ended June 30, 1993, and
the related financial statement schedule have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
7
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities and Exchange
Commission (the "Commission") by the Company are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
January 31, 1996 filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since January 31, 1996.
(c) The description of the Company's common stock, par value $.01 per
share (the "Common Stock"), contained in the Company's registration statement on
Form 8-A filed under the Exchange Act (File No. 0-23214), including any
subsequent amendment or any report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be part hereof
from the date of filing of such documents (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
CERTIFICATE OF INCORPORATION AND BY-LAWS
The Company's Certificate of Incorporation provides that each person who is
or was or had agreed to become a director or officer of the Company, or each
such person who is or was serving or who had agreed to serve at the request of
the Board of Directors of the Company as an employee or agent of the Company or
as director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), will be indemnified by the Company, in
accordance with the Company's By-Laws, to the full extent permitted by the
Delaware General Corporation Law (the "DGCL"), as the same exists or may in the
future be amended from time to time. The Company's Certificate of Incorporation
also specifically authorizes the Company to enter into agreements with any
person providing for indemnification greater or different from that provided by
the Company's Certificate of Incorporation.
The Company's By-Laws provide that each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative is or was a director, officer or employee of the
Company is or was serving at the request of the Company as a director,
II-1
<PAGE>
officer, employee or agent of another corporation or otherwise or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such Proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or agent
acting in furtherance of the Plan or otherwise, will be indemnified and held
harmless by the Company to the fullest extent authorized by the DGCL as the same
exists or may in the future be amended from time to time, against all expense,
liability and loss (including, without limitation, attorneys' fees, judgments,
fines, ERISA, excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification will continue as to a person who has ceased
to be a director, officer, employee or agent and will inure to the benefit of
his or her heirs, executors and administrators; however, except as described in
the next paragraph with respect to Proceedings seeking to enforce rights to
indemnification, the Company will indemnify any such person seeking
indemnification with a Proceeding (or part thereof) initiated by such person
only if such Proceeding (or part thereof) was authorized by the Board of
Directors of the Company.
Pursuant to the Company's By-Laws, if a claim described in the preceding
paragraph is not paid in full by the Company within thirty days after a written
claim has been received by the Company, the claimant may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant will be entitled to be paid also
the expense of prosecuting such claim. The Company's By-Laws provide that it
will be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Company) that the claimant has not met the standards of conduct
which make it permissible under the DGCL for the Company to indemnify the
claimant for the amount claimed, but the burden of proving such defense will be
on the Company. Neither the failure of the Company (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, nor an actual deter-
mination by the Company (including its Board of Directors, independent legal
counsel or stockholders) that the claimant has not met such applicable standard
of conduct, will be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct. The Company's By-Laws
provide that following any "change in control" of the Company of the type
required to be reported under Item 1 of Form 8-K promulgated under the
Securities Exchange Act of 1934, as amended, any determination as to entitlement
to indemnification will be made by independent legal counsel selected by the
claimant which independent legal counsel will be retained by the Board of
Directors on behalf of the Company.
The Company's By-Laws provide that the right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in the Company's By-Laws will not be exclusive of any
other right which any person may have or may in the future acquire under any
statute, provision of the Company's Certificate of Incorporation, the Company's
By-Laws, agreement, vote of stockholders or disinterested directors or
otherwise. The Company's By-Laws permit the Company to maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Company or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the Company
would have the power to indemnify such person against such expense, liability or
loss under the DGCL. In addition, the Company's By-Laws authorize the Company,
to the extent authorized from time to time by the Company's Board of Directors,
to grant rights to indemnification, and rights to be paid by the Company the
expenses incurred in defending any Proceeding in advance of its final
disposition, to any agent of the Company to the fullest extent of the provisions
of the Company's By-Laws with respect to the indemnification and advancement of
expenses of directors, officers and employees of the Company.
The Company's By-Laws provide that the right to indemnification conferred
therein will be a contract right and will include the right to be paid by the
Company the expenses incurred in defending any such Proceeding in advance of its
final disposition, except that if the DGCL requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
Proceeding, will be made only upon delivery to the Company of an undertaking by
or on behalf of such director or officer, to repay all amounts so advanced if it
is ultimately determined that such director or officer is not entitled to be
indemnified under the Company's By-Laws or otherwise.
II-2
<PAGE>
INDEMNIFICATION AGREEMENTS
The Company has or will enter into indemnification agreements with each of
the Company's directors and officers. The indemnification agreements require,
among other things, the Company to indemnify the officers and directors to the
fullest extent permitted by law, and to advance to such directors and officers
all related expenses, subject to reimbursement if it is subsequently determined
that indemnification is not permitted. The Company will also indemnify and
advance all expenses incurred by such directors and officers seeking to enforce
their rights under the indemnification agreements, and cover directors and
officers under the Company's directors' and officers' liability insurance.
Although such indemnification agreements will offer substantially the same scope
of coverage afforded by provisions in the Company's Certificate of Incorporation
and the Company's By-Laws, they provide greater assurance to directors and
officers that indemnification will be available because, as a contract, it
cannot be modified unilaterally in the future by the Board of Directors of the
Company or by the stockholders to eliminate the rights provided therein.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
4(a) Amended and Restated Certificate of Incorporation of the
Company, incorporated herein by reference from the Company's
Annual Report on Form 10-K for the fiscal year ended January
31, 1996 (File No. 0-23214).
4(b) Certificate of Merger and Ownership dated July 14, 1995,
incorporated herein by reference from the Company's
Registration Statement on Form S-4 (Registration No. 33-
95642).
4(c) By-Laws of the Company, incorporated herein by reference
from the Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1996 (File No. 0-23214).
4(d) Samsonite Corporation 1995 Stock Option and Incentive Award
Plan (as Amended in 1996), incorporated herein by reference
from the Company's 1996 Proxy Statement on Schedule 14A
(File No. 0-23214).
4(e) Form of Option Agreement for awards under the Samsonite
Corporation 1995 Stock Option and Incentive Award Plan (as
Amended in 1996).
4(f) Stock Option Agreement, dated May 15, 1996, between the
Company and Richard R. Nicolosi.
4(g) Stock Option Agreement, dated as of April 13, 1995, between
the Company and Steven J. Green, incorporated herein by
reference from the Company's Current Report on Form 8-K
filed April 24, 1995 (File No. 0-23214).
4(h) Share Option Agreement, dated as of June 8, 1993, between
the Company and Steven J. Green, incorporated herein by
reference from the Company's Registration Statement on Form
S-1 (Registration Statement No. 33-71224).
4(i) 1993 Incentive Plan, incorporated herein by reference from
the Company's Registration Statement on Form S-1
(Registration Statement No. 33-71224).
4(j) Stock Option Plan and Agreement, dated as of August 18,
1994, by and between the Company and Gregory Wm. Hunt,
incorporated herein by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended January 31,
1995 (File No. 0-23214).
5 Opinion of Brownstein Hyatt Farber & Strickland, P.C.
23(a) Consent of Brownstein Hyatt Farber & Strickland, P.C.
(included in its opinion filed as Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
- ----------------------------
II-3
<PAGE>
ITEM 9. UNDERTAKINGS
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 6 or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Denver, State of Colorado, on June 7, 1996.
SAMSONITE CORPORATION
By: /S/ RICHARD R. NICOLOSI
--------------------------------------------
Richard R. Nicolosi
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of Thomas R. Sandler and D.
Michael Clayton his true and lawful attorney-in-fact and agent, each with full
power of substitution and revocation, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the same with
all exhibits thereto, and other documents in connection therewith, the
Securities and Exchange Commission, granting unto each such attorney-in-fact and
agent, full power and authority to do and perform each such and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as such person might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and the foregoing Powers of Attorney have been signed on
June 7, 1996, by the following persons in the capacities indicated.
SIGNATURES TITLE
/S/ RICHARD R. NICOLOSI President, Chief Executive Officer and
- ----------------------------------- Director (Principal Executive Officer)
Richard R. Nicolosi
/S/ THOMAS R. SANDLER Chief Financial Officer, Treasurer and
- ----------------------------------- Secretary (Principal Financial and
Thomas R. Sandler Accounting Officer)
/S/ BERNARD ATTAL Director
- -----------------------------------
Bernard Attal
/S/ R. THEODORE AMMON Director
- -----------------------------------
Theodore Ammon
/S/ LEON D. BALCK Director
- -----------------------------------
Leon D. Black
II-5
<PAGE>
/S/ ROBERT H. FALK Director
- -----------------------------------
Robert H. Falk
Director
- -----------------------------------
Carl C. Icahn
Director
- -----------------------------------
Mark H. Rachesky
/S/ ROBERT L. ROSEN Director
- -----------------------------------
Robert L. Rosen
/S/ MARC J. ROWAN Director
- -----------------------------------
Marc J. Rowan
Director
- -----------------------------------
Stephen J. Solarz
II-6
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------ -----------------------
4(a) Amended and Restated Certificate of Incorporation of the
Company, incorporated herein by reference from the Company's
Annual Report on Form 10-K for the fiscal year ended January
31, 1996 (File No. 0-23214).
4(b)
Certificate of Merger and Ownership dated July 14, 1995,
incorporated herein by reference from the Company's
Registration Statement on Form S-4 (Registration No. 33-
95642).
4(c)
By-Laws of the Company, incorporated herein by reference
from the Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1996 (File No. 0-23214).
4(d)
Samsonite Corporation 1995 Stock Option and Incentive Award
Plan (as Amended in 1996), incorporated herein by reference
from the Company's 1996 Proxy Statement on Schedule 14A
(File No. 0-23214).
4(e) Form of Option Agreement for awards under the Samsonite
Corporation 1995 Stock Option and Incentive Award Plan (as
Amended in 1996).
4(f)
Stock Option Agreement, dated May 15, 1996, between the
Company and Richard R. Nicolosi.
4(g) Stock Option Agreement, dated as of April 13, 1995, between
the Company and Steven J. Green, incorporated herein by
reference from the Company's Current Report on Form 8-K
filed April 24, 1995 (File No. 0-23214).
4(h)
Share Option Agreement, dated as of June 8, 1993, between
the Company and Steven J. Green, incorporated herein by
reference from the Company's Registration Statement on Form
S-1 (Registration Statement No. 33-71224).
4(i)
1993 Incentive Plan, incorporated herein by reference from
the Company's Registration Statement on Form S-1
(Registration Statement No. 33-71224).
4(j) Stock Option Plan and Agreement, dated as of August 18,
1994, by and between the Company and Gregory Wm. Hunt,
incorporated herein by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended January 31,
1995 (File No. 0-23214).
5 Opinion of Brownstein Hyatt Farber & Strickland, P.C.
23(a)
Consent of Brownstein Hyatt Farber & Strickland, P.C.
(included in its opinion filed as Exhibit (5).
23(b) Consent of KPMG Peat Marwick LLP.
<PAGE>
Exhibit 4(e)
STOCK OPTION AGREEMENT
AGREEMENT (this "Agreement"), dated as of the 28th day of March, 1996,
by and between SAMSONITE CORPORATION, a Delaware corporation (the "Company"),
and [ ] (the "Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to grant to the Employee a right to
acquire shares of common stock, par value $.01 per share ("Common Stock"), of
the Company according to the terms and conditions provided herein and thereby
provide additional incentives to the Employee to increase the long-term value of
the Company and further align his interests with those of the stockholders of
the Company.
NOW, THEREFORE, in consideration of the premises and covenants herein
set forth and other good and valuable consideration, the Company and the
Employee hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination by
the Compensation Committee (the "Committee") of the Board of Directors of the
Company on March 28, 1996 and pursuant to the Company's 1995 Stock Option and
Incentive Award Plan, the Company, subject to the terms and conditions of this
Agreement, hereby confirms that the Employee has been granted, effective March
28, 1996 (the "Date of Grant"), as a matter of separate inducement and
agreement, and in addition to and not in lieu of salary or other compensation
for services, the right to purchase from the Company an aggregate of [ ]
shares of Common Stock (the "Options"). The Options shall vest as provided in
Section 4 hereof and shall be subject to adjustment as provided in Section 6
hereof.
2. EXERCISE PRICE. The initial exercise price per share (the
"Exercise Price") for the Options shall be $13.875.
3. NON-TRANSFERABILITY OF OPTIONS. The Options may not be assigned,
transferred or otherwise disposed of, or pledged or hypothecated in any way, and
shall not be subject to execution, attachment or other process otherwise than by
will or by the laws of descent and distribution, and the Options may be
exercised during the lifetime of the Employee only by him.
4. TERM AND EXERCISE OF OPTIONS. The Options shall remain
outstanding (subject to the vesting and exercisability provisions provided
herein) during a period of six (6) years beginning on the Date of Grant (the
"Option Term").
<PAGE>
Twenty percent (20%) of the Options shall vest on the date of this Agreement and
an additional twenty percent (20%) of the Options shall vest on each of January
31, 1997, 1998, 1999 and 2000 so long as the Employee remains continually
employed by the Company from the date hereof through such date of vesting.
Except as otherwise provided in Section 5 hereof, Options that have vested shall
remain exercisable in whole at any time or in part and from time to time until
the earlier to occur of the expiration of the Option Term and the expiration of
one year after the date of the termination of the Employee's employment with the
Company. The Employee shall not have any rights to dividends or any other
rights of a stockholder of the Company with respect to any shares of Common
Stock underlying the Options until such shares have been issued to him upon the
exercise of the Options.
5. TERMINATION. The Employee's rights with respect to the Options
upon death or the termination of his employment with the Company are as follows:
(a) CAUSE. If the Employee is terminated from his employment with the
Company for Cause (as defined below), then all the Options (whether vested or
unvested) shall automatically terminate and be cancelled (without any action on
the part of the Company) on the date upon which Preliminary Notice (as defined
below) is given to the Employee, provided that the Employee's employment is
thereafter terminated.
For purposes of this Agreement, the Company shall have "Cause" to
terminate the Employee's employment upon (A) the engaging by the Employee in
willful misconduct that is materially injurious to the Company, (B) the
embezzlement or misappropriation of funds or property of the Company by the
Employee or the conviction of the Employee of a felony or the entrance of a plea
of guilty by the Employee to a felony or (C) the failure or refusal by the
Employee to devote his full business time and attention to the performance of
his duties and responsibilities in connection with his employment or any other
breach by the Employee of the terms of his employment in any material respect if
such breach has not been cured by the Employee within thirty (30) days after the
Preliminary Notice has been given to the Employee. For purposes of this
paragraph, no act, or failure to act, on the Employee'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 Employee shall not be deemed to have been terminated for
Cause, unless the Company shall have given the Employee (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 Employee, together with his counsel, to be heard
before the Board of Directors of the Company or any duly authorized committee
thereof (the "Board") and (iii) a notice of termination stating that, in the
good faith judgment of the Board, the Employee 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 Employee shall
have thirty (30) days in which to appear before the Board with counsel, or take
such other action
<PAGE>
as he may deem appropriate, and such thirty (30) day period is hereby agreed to
as a reasonable opportunity for the Employee to be heard.
(b) DISABILITY. If the Employee is terminated from his employment
with the Company by reason of disability (as defined below), then all unvested
Options shall automatically terminate and be cancelled (without any action on
the part of the Company) on the effective date of such termination. All Options
that have vested prior to such date shall remain exercisable until the earlier
to occur of (i) the first anniversary of such date and (ii) the expiration of
the Option Term.
For purposes of this Agreement, "disability" shall mean that the Board
determines in good faith, based on medical evidence acceptable to it, that the
Employee has become physically or mentally disabled or incapacitated for a
continuous period of ninety (90) days to such an extent that he is unable to
perform his duties.
(c) DEATH. If the Employee dies while employed by the Company, then
all unvested Options shall automatically terminate and be cancelled (without any
action on the part of the Company) on the date of death. Following the
Employee's death, his executors, administrators, legatees or distributees may
exercise the Options that have vested prior to the date of death until the
earlier to occur of (i) the first anniversary of such date and (ii) the
expiration of the Option Term.
(d) OTHER TERMINATIONS OF EMPLOYMENT. If the Employee's employment
with the Company is terminated other than for a reason described in paragraph
(a), (b) or (c) above, then all unvested Options shall automatically terminate
and be cancelled (without any action on the part of the Company) on the date of
such termination. All Options that have vested prior to such date shall remain
exercisable until the earlier to occur of (i) the ninetieth day following such
date and (ii) the expiration of the Option Term.
(e) EXTENSION AFTER CERTAIN TERMINATIONS. If the Employee's
employment with the Company is terminated other than for a reason described in
paragraph (a), (b) or (c) above, and the Employee dies or becomes disabled
within ninety (90) days after such termination of employment, then the
Employee's executors, administrators, legatees or distributees may exercise the
Options, to the extent vested and exercisable as of the date of such termination
until the earlier to occur of (i) the first anniversary of the date of death or
disability and (ii) the expiration of the Option Term.
6. CERTAIN ADJUSTMENTS. The number and kind of securities that may
be purchased upon the exercise of the Options and the Exercise Price shall be
subject to adjustment from time to time upon the occurrence of any of the
following events after the date hereof:
<PAGE>
(a) RECAPITALIZATION, CAPITAL REORGANIZATION, RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE. In case of any recapitalization or capital
reorganization of the Company or any reclassification of the outstanding Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a merger with another corporation in which the Company
is the surviving corporation and that does not result in any reclassification of
or change in the outstanding Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination)), or in case of any sale or transfer to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Employee shall thereafter have the right to
acquire upon exercise of the Options, in lieu of each share of Common Stock
theretofore issuable upon exercise of the Options, the kind and amount of shares
of capital stock, other securities, money and/or property receivable in respect
of each share of Common Stock upon such recapitalization, reorganization,
reclassification, consolidation, merger, sale or transfer. The provisions of
this paragraph (a) shall similarly apply to successive recapitalizations,
reorganizations, reclassifications, consolidations, mergers, sales and
transfers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If the Company shall
subdivide or combine its outstanding shares of Common Stock, (i) in case of
subdivision of shares, the Exercise Price shall be proportionately reduced (as
at the effective date of such subdivision or, if the Company shall take a record
of holders of its Common Stock for the purpose of so subdividing, as at the
applicable record date, whichever is earlier) to reflect the increase in the
total number of shares of Common Stock outstanding as a result of such
subdivision, or (ii) in the case of a combination of shares, the Exercise Price
shall be proportionately increased (as at the effective date of such combination
or, if the Company shall take a record of holders of its Common Stock for the
purpose of so combining, as at the applicable record date, whichever is earlier)
to reflect the reduction in the total number of shares of Common Stock
outstanding as a result of such combination. In the event that an adjustment
pursuant to this paragraph (b) is made as of the record date for purposes of any
subdivision or combination and such subdivision or combination is not so made,
the Exercise Price shall again be adjusted to be the Exercise Price that would
then be in effect if such record date had not been fixed.
(c) CERTAIN DIVIDENDS AND DISTRIBUTIONS. If the Company shall pay a
dividend on, or make any other distribution to the holders of, its outstanding
Common Stock in shares of its Common Stock, the Exercise Price shall be
adjusted, as of the date the Company shall take a record of the holders of
Common Stock for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as of the date of such payment or other
distribution), to that price determined by multiplying the Exercise Price in
effect immediately prior to such record date (or if no such record is taken,
immediately prior to such payment or
<PAGE>
other distribution), by a fraction (i) the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior to such dividend
or distribution, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution; PROVIDED, that if the foregoing adjustment is made to the Exercise
Price as of a record date for such dividend or other distribution and such
dividend or distribution is not so paid or made, the Exercise Price shall again
be adjusted to be the Exercise Price that would then be in effect if such record
date had not been fixed.
(d) ADJUSTMENT NUMBER OF SHARES. Upon each adjustment and
readjustment of the Exercise Price pursuant to paragraph (b) or (c) of this
Section 6, the number of shares of Common Stock then issuable upon exercise of
the Options shall be adjusted, to the nearest 1/10th of a whole share, to the
product obtained by multiplying such number of shares issuable upon exercise of
the Options immediately prior to such adjustment in the Exercise Price by a
fraction, the numerator of which shall be the Exercise Price immediately prior
to such adjustment and the denominator of which shall be the Exercise Price
immediately thereafter.
7. METHOD OF EXERCISE OF OPTIONS.(a) Subject to the terms and
conditions of this Agreement, the Options shall be exercisable by notice (an
"Exercise Notice") and payment to the Company in accordance with the procedure
prescribed herein; PROVIDED, that the aggregate Exercise Price with respect to
any one such exercise shall not be less than $10,000 unless such exercise
represents an exercise of all Options that are vested and exercisable as of the
date of such exercise. If the Employee fails to accept delivery of and pay for
all or any part of the number of shares specified in the Exercise Notice upon
tender or delivery thereof, his right to exercise the Options with respect to
such undelivered shares may be terminated in the sole discretion of the Board.
(b) Each Exercise Notice shall: (i) state the number of shares in
respect of which they are being exercised, (ii) be accompanied by payment as
provided in paragraph (c) below, and (iii) be signed by the person or persons
entitled to exercise such Options. If such Options are being exercised by any
person or persons other than the Employee, the Exercise Notice shall be
accompanied by proof, satisfactory to the Company and its counsel, of the right
of such person or persons to exercise such Options.
(c) Subject to Section 11 hereof, payment of the Exercise Price shall
be made by delivering to the Company any one or a combination of the following:
(i) a certified or bank cashier's check payable to the Company or its order or a
wire transfer directly to an account specified by the Company, (ii) one or more
certificates evidencing shares of Common Stock owned by the Employee immediately
prior to such exercise, together with a duly executed stock power, having an
aggregate Fair Market Value (as defined below) on the date on which the Exercise
Notice is given equal to the aggregate Exercise Price or (iii) a copy of
<PAGE>
irrevocable instructions to a registered broker/dealer to deliver promptly to
the Company an amount of proceeds from the sale of shares of Common Stock to be
issued pursuant to the Options being exercised or of a loan made with respect to
shares of Common Stock to be issued pursuant to the Options being exercised
sufficient, in either case, to pay the Exercise Price.
(d) The certificate or certificates representing shares of Common
Stock to be issued upon exercise of the Options shall be registered in the name
of the person or persons exercising such Options (or, if such Options are
exercised by the Employee and if the Employee so requests in the applicable
Exercise Notice, shall be registered in the name of the Employee and his spouse
jointly, with right of survivorship) but only upon compliance with all the
provisions of this Agreement, and such certificate or certificate shall be
delivered within 10 days after receipt of payment and completion of such
compliance by the Employee; PROVIDED, that in the case of clause (iii) of the
first sentence of Section 7(c), the Company shall not be required to make
delivery of the certificate or certificates until payment is actually received
from such broker/dealer.
(e) The Company shall have no obligation to issue or deliver
fractional shares of Common Stock upon exercise of the Options but may, in its
sole discretion, elect to do so. In lieu of issuing any such fractional share
the Company shall pay to the person exercising the Options, promptly following
such exercise, an amount in cash equal to the Fair Market Value, as of the date
of exercise, of such fraction of a share. The "Fair Market Value" per share of
Common Stock as of any date of determination, shall mean (i) the closing sales
price per share of Common Stock, on the national securities exchange on which
such stock is principally traded, on the next preceding date on which there was
a sale of such stock on such exchange, or (ii) if the shares of Common Stock are
not listed or admitted to trading on any such exchange, the closing price as
reported by the Nasdaq Stock Market for the last preceding date on which there
was a sale of such stock on such exchange, or (iii) if the shares of Common
Stock are not then listed on a national securities exchange or on the Nasdaq
Stock Market, the average of the highest reported bid and lowest reported asked
prices for the shares of Common Stock as reported by the National Association of
Securities Dealers, Inc. Automated Quotations ("NASDAQ") system for the last
preceding date on which such bid and asked prices were reported, or (iv) if the
shares of Common Stock are not then listed on any securities exchange or prices
therefor are not then quoted in the NASDAQ system, such value as determined in
good faith by the Board (or any duly authorized committee thereof).
8. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement
shall confer upon the Employee the right to continue in the employ of the
Company or to be entitled to any right or benefit not set forth in this
Agreement or to interfere with or limit in any way the right of the Company to
terminate the Employee's employment.
<PAGE>
9. WITHHOLDING TAXES. The Company shall have the right to require
the Employee (or such other person, if any, who has the right to exercise the
Options) to pay to the Company in cash the amount of any federal, state, local
and foreign income and other taxes that the Company may be required to withhold
before delivering to the Employee (or such other person) a certificate or
certificates representing shares of Common Stock issuable hereunder.
Notwithstanding the foregoing sentence, subject to Section 11 hereof, the
Employee may elect to cause Common Stock issuable upon the exercise of any of
the Options, having a Fair Market Value on the day immediately preceding the
date on which such certificates are delivered equal to the amount of such
withholding obligation, to be withheld by the Company in satisfaction of such
obligation.
10. APPROVAL OF COUNSEL. Any exercise of the Options and the
issuance and delivery of shares of Common Stock pursuant thereto shall be
subject to approval by the Company's counsel of all legal matters in connection
therewith, including compliance with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder, the requirements of
any stock exchange upon which the Common Stock may then be listed and any
applicable state securities or "blue sky" laws. The Employee understands that,
as of the date hereof, neither the Options nor the shares of Common Stock
issuable upon exercise of the Options have been registered under the Securities
Act or any applicable state securities or "blue sky" laws.
11. RESALE OF COMMON STOCK. Upon any sale or transfer of the Common
Stock purchased upon exercise of the Options, the Employee shall deliver to the
Company an opinion of counsel satisfactory to the Company to the effect that
either (a) the sale of the Common Stock to be so sold or transferred has been
registered under the Securities Act or (b) such Common Stock may then be sold
without registration under the Securities Act and applicable state securities
laws.
The certificates evidencing the shares of Common Stock issued upon
exercise of the Options shall bear a legend to the following effect (unless the
Company requires otherwise):
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL
FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
12. REGISTRATION RIGHTS. If the Company proposes to file a
registration statement on Form S-8 (or any successor form for the registration
under the Securities Act of securities to be offered pursuant to employee
benefit plans) and such form then permits the registration thereunder of the
Common Stock underlying the Options, the Company shall include in such
registration the Common
<PAGE>
Stock underlying the Option, subject to then applicable rules and regulations,
in order to permit the public resale thereof by the Employee. The registration
rights set forth in this Section 12 shall apply only to the extent that an
effective registration statement is then required for the public sale by the
Employee of the Common Stock underlying the Options.
13. NOTICES. For the purposes of this Agreement, notices, demands
and all other communications provided for in this 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) (unless otherwise specified) when mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
Samsonite Corporation
11200 East Forty-Fifth Avenue
Denver, Colorado 80239-3018
Attention: Board of Directors
c/o Corporate Secretary
with a copy to each member of the Committee who is not an officer or an employee
of the Company at the address specified by each such director to which notice of
meetings of the Board of Directors is to be sent 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.
All notices to the Employee or other person or persons then entitled
to exercise the Options shall be addressed to the Employee or such other person
or persons at the then current address of the Employee contained in the employee
payroll records of the Company.
Anyone to whom a notice may be given under this Agreement may
designate a new address by notice to that effect.
14. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit
of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Employee and all rights granted to the Company
under this Agreement shall be binding upon the Employee and, to the limited
extent set forth herein, the Employee's heirs, legal representatives and
successors. No other person shall have any rights under this Agreement.
15. SEVERABILITY. In the event that any one or more provisions of
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions herein, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
<PAGE>
16. ENTIRE AGREEMENT. The parties hereto agree that this Agreement
contains the entire understanding and agreement between them, and supersedes all
prior understandings and agreements between the parties respecting the subject
matter hereof, 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.
17. 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.
18. GOVERNING LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of New York, without regard to the
conflicts of law principles thereof.
19. INCORPORATION BY REFERENCE. The incorporation herein of any
terms by reference to another document shall not be affected by the termination
of any agreement set forth in such other document or the invalidity of any
provision thereof.
20. TIME PERIODS. Any action required to be taken under this
Agreement within a certain number of days shall be taken within that number of
calendar days; PROVIDED, that if the last day for taking such action falls on a
weekend or a holiday, the period during which such action may be taken shall be
automatically extended to the next business day.
21. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by an authorized officer and the Employee has hereunto set his hand all
as of the day, month and year first above written.
SAMSONITE CORPORATION
By:
----------------------------------------
Name:
Title:
Employee:
-------------------------------------------
[name]
<PAGE>
Exhibit 4(f)
STOCK OPTION AGREEMENT
AGREEMENT, dated as of the 15th day of May, 1996, by and between
SAMSONITE CORPORATION, a Delaware corporation (the "Company"), and RICHARD R.
NICOLOSI (the "Executive").
W I T N E S S E T H :
WHEREAS, as an essential inducement to the Executive entering into the
Employment Agreement (the "Employment Agreement"), dated as of May 15, 1996, by
and between the Company and the Executive, the Company desires to grant to the
Executive a right to acquire shares of common stock, par value $.01 per share
("Common Stock"), of the Company according to the terms and conditions provided
herein and to provide additional incentives to the Executive to increase the
long-term value of the Company and further align his interests with those of the
stockholders of the Company.
NOW, THEREFORE, in consideration of the premises and covenants herein
set forth and other good and valuable consideration, the Company and the
Executive hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination by
the Board of Directors of the Company (together with any duly authorized
committee thereof, the "Board"), the Company, subject to the terms and
conditions of this Agreement, hereby confirms that the Executive has been
granted, effective May 15, 1996 (the "Date of Grant"), as a matter of separate
inducement and agreement, and in addition to and not in lieu of salary or other
compensation for services, the right to purchase from the Company (i) 186,170
shares, of Common Stock (the "Series A Options") and (ii) 239,362 shares, of
Common Stock (the "Series B Options" and, together with the Series A Options,
the "Options"). The Series A Options and the Series B Options shall constitute
separate series, each of which shall be subject to separate vesting criteria as
provided in Section 4 hereof. The Options shall vest as provided in Section 4
hereof and shall be subject to adjustment as provided in Section 6 hereof.
<PAGE>
2. EXERCISE PRICE. The exercise price per share (the "Exercise
Price") for the Options shall be $18.25.
3. NON-TRANSFERABILITY OF OPTIONS. The Options may not be assigned,
transferred or otherwise disposed of, or pledged or hypothecated in any way, and
shall not be subject to execution, attachment or other process otherwise than by
will or by the laws of descent and distribution, and the Options may be
exercised during the lifetime of the Executive only by him.
4. TERM AND EXERCISE OF OPTIONS. The Options shall remain
outstanding (subject to the vesting and exercisability provisions provided
herein) during a period of five (5) years beginning on the Date of Grant (the
"Option Term"). Except as otherwise provided in Section 5 hereof, Options that
have vested (regardless of the provision of this Agreement pursuant to which
vesting occurred) shall remain exercisable in whole at any time or in part and
from time to time until the earlier to occur of the expiration of the Option
Term and the expiration of one year after the date of the termination of the
Executive's employment with the Company. The Executive shall not have any
rights to dividends or any other rights of a stockholder of the Company with
respect to any shares of Common Stock underlying the Options until such shares
have been issued to him upon the exercise of the Options.
(a) SERIES A OPTIONS. Fifty percent (50%) of the Series A Options
shall vest on the first anniversary of the date of this Agreement and the
remaining fifty percent (50%) of the Series A Options shall vest on the second
anniversary of the date of this Agreement so long as the Executive remains
continually employed by the Company from the date hereof through such date of
vesting.
(b) SERIES B OPTIONS. The Series B Options shall vest on the second
anniversary date of this Agreement if (i) the Executive remains continually
employed by the Company from the date hereof through such date of vesting, and
(ii) the arithmetic average of the Fair Market Values (as defined below) per
share of Common Stock as of each day in any period of 30 consecutive days prior
to the second anniversary of the date of this
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Agreement shall equal or exceed the Target Price Per Share (as defined below).
(c) ACCELERATED VESTING OF OPTIONS. Notwithstanding any provision
hereof to the contrary, if a Change of Control (as defined below) occurs at any
time prior to the second anniversary of this Agreement, then, as of the Change
of Control Date (as defined below), (i) all of the Series A Options that have
not become vested prior to the Change of Control Date shall become vested and
(ii) all of Series B Options shall become vested, provided that in the case of
the Series B Options, either (x) the arithmetic average of the Fair Market
Values per share of Common Stock as of each day in any period of 30 consecutive
days prior to the Change of Control Date or (y) the Fair Market Value per share
of Common Stock as of the Change of Control Date, shall equal or exceed the
Target Price Per Share, and further provided that in the case of both the Series
A Options and the Series B Options, the Executive remains continually employed
by the Company from the date hereof to the Change of Control Date.
Notwithstanding the failure of any Series B Options to vest pursuant to Section
4(b) or the preceding sentence of this Section 4(c), all of the Series B Options
shall vest on April 15, 2001, so long as the Executive remains continually
employed by the Company from the date hereof through April 15, 2001.
(d) CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"TARGET PRICE PER SHARE". The "Target Price Per Share" means $30.00
per share of Common Stock, as adjusted by the Board to reflect any
recapitalization, capital reorganization, reclassification, share subdivision or
combination, stock dividend or similar transaction after the date of this
Agreement (using the methodology set forth in Sections 6(a), 6(b) and 6(c)
hereof with respect to adjustments to the Exercise Price), but excluding any
such transaction or series of related transactions that constitute or result in
a Change of Control.
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<PAGE>
"FAIR MARKET VALUE". The "Fair Market Value" per share of Common
Stock, as of any date of determination, means (i) the closing sales price per
share of Common Stock, on the national securities exchange on which such stock
is principally traded, on the next preceding date on which there was a sale of
such stock on such exchange, or (ii) if the shares of Common Stock are not
listed or admitted to trading on any such exchange, the closing price as
reported by the Nasdaq Stock Market for the last preceding date on which there
was a sale of such stock on such exchange, or (iii) if the shares of Common
Stock are not then listed on a national securities exchange or on the Nasdaq
Stock Market, the average of the highest reported bid and lowest reported asked
prices for the shares of Common Stock as reported by the National Association of
Securities Dealers, Inc. Automated Quotations ("NASDAQ") system for the last
preceding date on which such bid and asked prices were reported, or (iv) if the
shares of Common Stock are not then listed on any securities exchange or prices
therefor are not then quoted in the NASDAQ system, such value as determined in
good faith by the Board (or any duly authorized committee thereof).
Notwithstanding the foregoing, if a Change of Control occurs, the "Fair Market
Value" per share of the Common Stock, as of the date (the "Change of Control
Date") on which such Change of Control occurs, means (i) the per share price at
which the Change of Control transaction takes place if such transaction involves
a sale of Common Stock for cash or a cash merger or (ii) the implied per share
value of the Common Stock set forth in an opinion (the "Valuation Opinion") of
the investment bank retained by the Company in connection with such transaction
if such transaction involves a sale of stock other than for cash or a sale of
assets or merger (other than a cash merger) or consolidation of the Company with
or into another corporation. The Valuation Opinion shall be rendered as of the
Change of Control Date and shall value the Common Stock by reference to the fair
market value of the consideration received by the Company or its stockholders in
the Change of Control transaction on the last business day preceding the Change
of Control Date.
"CHANGE OF CONTROL". "Change of Control" means (a) any sale, transfer
or other conveyance (whether directly, or indirectly through a merger,
consolidation or similar transaction), or series of related sales, transfers or
other conveyances, of the outstanding capi-
4
<PAGE>
tal stock of the Company pursuant to which any person (or group of affiliated
persons) other than an Excluded Person, becomes the beneficial owner of more
than 50% of the outstanding common stock of the Company or (b) any sale,
transfer or other conveyance of all or substantially all of the Company's assets
to any person (or group of affiliated persons) other than to an Excluded Person.
For purposes of the foregoing definition, "Excluded Person" means and includes
(i) Apollo Investment Fund, L.P. ("Apollo"), any of its affiliates, and, so long
as Apollo or an affiliate of Apollo controls the right to vote the securities in
question, any partner, shareholder or trustee of any of them, (ii) any
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company
and (iii) the Company or any subsidiary of the Company.
5. TERMINATION. The Executive's rights with respect to the Options
upon death or the termination of his employment with the Company are as follows:
(a) CAUSE. If the Executive is terminated from his employment with
the Company for Cause (as defined in the Employment Agreement) in accordance
with Section 5(c) of the Employment Agreement, then all the Options (whether
vested or unvested) shall automatically terminate and be cancelled (without any
action on the part of the Company) (x) on the date upon which Preliminary Notice
is given pursuant to Section 5(c) of the Employment Agreement, in the case of a
termination for Cause described in clause (A) or (B) of Section 5(c) of the
Employment Agreement, and (y) on the Date of Termination (as defined in the
Employment Agreement) in the case of a termination for Cause described in clause
(C) of Section 5(c) of the Employment Agreement, provided that the Executive's
employment is thereafter terminated in accordance with the provisions of Section
5(c) of the Employment Agreement.
(b) DISABILITY. If the Executive is terminated from his employment
with the Company by reason of disability in accordance with Section 5(b) of the
Employment Agreement, then all unvested Options shall automatically terminate
and be cancelled (without any action on the part of the Company) on the
effective date of such termination. All Options that have vested prior to such
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<PAGE>
date shall remain exercisable until the earlier to occur of (i) the first
anniversary of such date and (ii) the expiration of the Option Term.
(c) DEATH. If the Executive dies while employed by the Company, then
all unvested Options shall automatically terminate and be cancelled (without any
action on the part of the Company) on the date of death. Following the
Executive's death his executors, administrators, legatees or distributees may
exercise the Options that have vested prior to the date of death until the
earlier to occur of (i) the first anniversary of such date and (ii) the
expiration of the Option Term.
(d) OTHER TERMINATIONS OF EMPLOYMENT.
(i) If the Executive's employment is terminated by the Executive
other than for Good Reason (as defined in the Employment Agreement), then all
unvested Options shall automatically terminate and be cancelled (without any
action on the part of the Company) on the date of such termination. All Options
that have vested prior to such date shall remain exercisable until the earlier
to occur of (i) the ninetieth day following such date and (ii) the expiration of
the Option Term.
(ii) If the Executive's employment is terminated (A) by the
Company without Cause other than for disability or (B) by the Executive for Good
Reason, then, as of the date of such termination, (i) fifty percent (50%) of the
Series A Options shall become vested, if the date of such termination is on or
before the first anniversary of the date of this Agreement, or all of the Series
A Options that have not become vested prior to the date of such termination
shall become vested, if the date of such termination is after the first
anniversary of the date of this Agreement and (ii) all of the Series B Options
shall become vested, provided that in the case of the Series B Options, either
(x) the arithmetic average of the Fair Market Values per share of Common Stock
as of each day in any period of 30 consecutive days prior to the date of
termination or (y) the Fair Market Value per share of Common Stock as of the
date of termination, shall equal or exceed the Target Price Per Share.
Notwithstanding the foregoing, if a Change of Control occurs within 180 days
after the date of such termination and either (x) the arithmetic average of the
Fair Market
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<PAGE>
Values per share of Common Stock as of each day in any period of 30 consecutive
days prior to the Change of Control Date or (y) the Fair Market Value per share
of Common Stock as of the Change of Control Date, shall equal or exceed the
Target Price Per Share, then all of the Series A Options and all of the Series B
Options that have not become vested pursuant to the preceding sentence of this
Section 6(d)(ii) shall become vested as of the Change of Control Date. Any
Series A Options or Series B Options that do not become vested pursuant to the
immediately preceding two sentences of this Section 6(d)(ii) shall automatically
terminate and be canceled (without any action on the part of the Company) on the
180th day after the date of such termination.
(e) TERMINATION DATE. For purposes of Sections 5(a), (b) and (d)
hereof, the date of termination of the Executive's employment shall be the Date
of Termination (as defined in the Employment Agreement).
(f) EXTENSION AFTER CERTAIN TERMINATIONS. If the Executive's
employment with the Company is terminated other than for a reason described in
paragraph (a), (b), (c) or (d)(i) above, and the Executive dies or becomes
disabled within ninety (90) days after such termination of employment, then the
Executive's executors, administrators, legatees or distributees may exercise the
Options, to the extent vested and exercisable as of the Date of Termination
until the earlier to occur of (i) the first anniversary of the date of death or
disability and (ii) the expiration of the Option Term.
6. CERTAIN ADJUSTMENTS. The number and kind of securities that may
be purchased upon the exercise of the Options and the Exercise Price shall be
subject to adjustment from time to time upon the occurrence of any of the
following events after the date hereof:
(a) RECAPITALIZATION, CAPITAL REORGANIZATION, RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE. In case of any recapitalization or capital
reorganization of the Company or any reclassification of the outstanding Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a merger with
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<PAGE>
another corporation in which the Company is the surviving corporation and that
does not result in any reclassification of or change in the outstanding Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or
combination)), or in case of any sale or transfer to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
Executive shall thereafter have the right to acquire upon exercise of the
Options, in lieu of each share of Common Stock theretofore issuable upon
exercise of the Options, the kind and amount of shares of capital stock, other
securities, money and/or property receivable in respect of each share of Common
Stock upon such recapitalization, reorganization, reclassification,
consolidation, merger, sale or transfer. The provisions of this paragraph (a)
shall similarly apply to successive recapitalizations, reorganizations,
reclassifications, consolidations, mergers, sales and transfers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If the Company shall
subdivide or combine its outstanding shares of Common Stock, (i) in the case of
a subdivision of shares, the Exercise Price shall be proportionately reduced (as
at the effective date of such subdivision or, if the Company shall take a record
of holders of its Common Stock for the purpose of so subdividing, as at the
applicable record date, whichever is earlier) to reflect the increase in the
total number of shares of Common Stock outstanding as a result of such
subdivision, or (ii) in the case of a combination of shares, the Exercise Price
shall be proportionately increased (as at the effective date of such combination
or, if the Company shall take a record of holders of its Common Stock for the
purpose of so combining, as at the applicable record date, whichever is earlier)
to reflect the reduction in the total number of shares of Common Stock
outstanding as a result of such combination. In the event that an adjustment
pursuant to this paragraph (b) is made as of the record date for purposes of any
subdivision or combination and such subdivision or combination is not so made,
the Exercise Price shall again be adjusted to be the Exercise Price that would
then be in effect if such record date had not been fixed.
(c) CERTAIN DIVIDENDS AND DISTRIBUTIONS. If the Company shall pay a
dividend on, or make any other
8
<PAGE>
distribution to the holders of, its outstanding Common Stock in shares of its
Common Stock, the Exercise Price shall be adjusted, as of the date the Company
shall take a record of the holders of Common Stock for the purpose of receiving
such dividend or other distribution (or if no such record is taken, as of the
date of such payment or other distribution), to that price determined by
multiplying the Exercise Price in effect immediately prior to such record date
(or if no such record is taken, immediately prior to such payment or other
distribution), by a fraction (i) the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior to such dividend
or distribution, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution; PROVIDED that if the foregoing adjustment is made to the Exercise
Price as of a record date for such dividend or other distribution and such
dividend or distribution is not so paid or made, the Exercise Price shall again
be adjusted to be the Exercise Price that would then be in effect if such record
date had not been fixed.
(d) ADJUSTMENT NUMBER OF SHARES. Upon each adjustment and
readjustment of the Exercise Price pursuant to paragraph (b) or (c) of this
Section 6, the number of shares of Common Stock then issuable upon exercise of
the Options shall be adjusted, to the nearest 1/10th of a whole share, to the
product obtained by multiplying such number of shares issuable upon exercise of
the Options immediately prior to such adjustment in the Exercise Price by a
fraction, the numerator of which shall be the Exercise Price immediately prior
to such adjustment and the denominator of which shall be the Exercise Price
immediately thereafter.
7. METHOD OF EXERCISE OF OPTIONS. (a) Subject to the terms and
conditions of this Agreement, the Options shall be exercisable by notice (an
"Exercise Notice") and payment to the Company in accordance with the procedure
prescribed herein. If the Executive fails to accept delivery of and pay for all
or any part of the number of shares specified in the Exercise Notice upon tender
or delivery thereof, his right to exercise the Options with respect to such
undelivered shares may be terminated in the sole discretion of the Board (or any
duly authorized committee thereof).
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<PAGE>
(b) Each Exercise Notice shall: (i) state the number of shares in
respect of which they are being exercised, (ii) be accompanied by payment as
provided in paragraph (c) below, and (iii) be signed by the person or persons
entitled to exercise such Options. If such Options are being exercised by any
person or persons other than the Executive, the Exercise Notice shall be
accompanied by proof, satisfactory to the Company and its counsel, of the right
of such person or persons to exercise such Options.
(c) Subject to Section 11 hereof, payment of the Exercise Price shall
be made by delivering to the Company any one or a combination of the following:
(i) a certified or bank cashier's check payable to the Company or its order or a
wire transfer directly to an account specified by the Company, (ii) one or more
certificates evidencing shares of Common Stock owned by the Executive
immediately prior to such exercise, together with a duly executed stock power,
having an aggregate Fair Market Value on the date on which the Exercise Notice
is given equal to the aggregate Exercise Price or (iii) a copy of irrevocable
instructions to a registered broker/dealer to deliver promptly to the Company an
amount of proceeds from the sale of shares of Common Stock to be issued pursuant
to the Options being exercised or of a loan made with respect to shares of
Common Stock to be issued pursuant to the Options being exercised sufficient, in
either case, to pay the Exercise Price.
(d) The certificate or certificates representing shares of Common
Stock to be issued upon exercise of the Options shall be registered in the name
of the person or persons exercising such Options (or, if such Options are
exercised by the Executive and if the Executive so requests in the applicable
Exercise Notice, shall be registered in the name of the Executive and his spouse
jointly, with right of survivorship) but only upon compliance with all the
provisions of this Agreement, and such certificate or certificate shall be
delivered within 10 days after receipt of payment and completion of such
compliance by the Executive, PROVIDED that in the case of clause (iii) of the
first sentence of Section 7(c), the Company shall not be required to make
delivery of the certificate or certificates until payment is actually received
from such broker/dealer.
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<PAGE>
(e) The Company shall have no obligation to issue or deliver
fractional shares of Common Stock upon exercise of the Options but may, in its
sole discretion, elect to do so. In lieu of issuing any such fractional share
the Company shall pay to the person exercising the Options, promptly following
such exercise, an amount in cash equal to the Fair Market Value (as defined in
Section 4(c)), as of the date of exercise, of such fraction of a share.
8. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement
shall confer upon the Executive the right to continue in the employ of the
Company or to be entitled to any right or benefit not set forth in this
Agreement or to interfere with or limit in any way the right of the Company to
terminate the Executive's employment in accordance with the Employment
Agreement.
9. WITHHOLDING TAXES. The Company shall have the right to require
the Executive (or such other person, if any, who has the right to exercise the
Options) to pay to the Company in cash the amount of any federal, state, local
and foreign income and other taxes that the Company may be required to withhold
before delivering to the Executive (or such other person) a certificate or
certificates representing shares of Common Stock issuable hereunder.
Notwithstanding the foregoing sentence, subject to Section 11 hereof, the
Executive may elect to cause Common Stock issuable upon the exercise of any of
the Options, having a Fair Market Value on the day immediately preceding the
date on which such certificates are delivered equal to the amount of such
withholding obligation, to be withheld by the Company in satisfaction of such
obligation.
10. COMPLIANCE WITH APPLICABLE LAW. Any exercise of the Options and
the issuance and delivery of shares of Common Stock pursuant thereto shall be
subject to applicable law, including compliance with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, the
requirements of any stock exchange upon which the Common Stock may then be
listed and any applicable state securities or "blue sky" laws. The Executive
understands that, as of the date hereof, neither the Options nor the shares of
Common Stock issuable upon
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<PAGE>
exercise of the Options have been registered under the Securities Act or any
applicable state securities or "blue sky" laws.
11. RESALE OF COMMON STOCK. Upon any sale or transfer of the Common
Stock purchased upon exercise of the Options, the Executive shall deliver to the
Company an opinion of counsel satisfactory to the Company to the effect that
either (a) the sale of the Common Stock to be so sold or transferred has been
registered under the Securities Act or (b) such Common Stock may then be sold
without registration under the Securities Act and applicable state securities
laws.
The certificates evidencing the shares of Common Stock issued upon
exercise of the Options shall bear a legend to the following effect (unless the
Company requires otherwise):
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL
FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
12. REGISTRATION. Not later than the first anniversary of the date
of this Agreement, the Company shall file a registration statement on Form S-8
(or any successor form for the registration under the Securities Act of
securities to be offered pursuant to employee benefit plans) registering the
Common Stock underlying the Options under the Securities Act, subject to then
applicable rules and regulations, in order to permit the public resale thereof
by the Executive. This Section 12 shall apply only to the extent that an
effective registration statement is then required for the public sale by the
Executive of the Common Stock underlying the Options.
13. NOTICES. For the purposes of this Agreement, notices, demands
and all other communications provided for in this 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) (unless otherwise specified) when mailed by United States
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registered mail, return receipt requested, postage prepaid, addressed, as
follows:
If to the Company:
Samsonite Corporation
12000 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)
If to the Executive or other person or persons
entitled to exercise the Options:
Richard R. Nicolosi
4408 Intracoastal Drive
Highland Beach, Florida 33487
(in each case, with a copy to Gregory A. Fernicola, Esq., at Skadden, Arps,
Slate, Meagher & Flom, 919 Third Avenue, New York, New York 10022 and Howard G.
Kristol, Esq., at Reboul, MacMurray, Hewitt, Maynard & Kristol, 45 Rockefeller
Plaza, New York, New York 10111) 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.
14. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit
of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Executive and all rights granted to the Company
under this Agreement shall be binding upon the Executive and, to the limited
extent set forth herein, the Executive's heirs, legal representatives and
successors. No other person shall have any rights under this Agreement.
15. SEVERABILITY. In the event that any one or more provisions of
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions herein, which shall be construed as
if such
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illegal or unenforceable provision or provisions had not been inserted.
16. ENTIRE AGREEMENT. The parties hereto agree that this Agreement
contains the entire understanding and agreement between them, and supersedes all
prior understandings and agreements between the parties respecting the subject
matter hereof, 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.
17. 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.
18. GOVERNING LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of New York, without regard to the
conflicts of law principles thereof.
19. INCORPORATION BY REFERENCE. The incorporation herein of any
terms by reference to another document shall not be affected by the termination
of any agreement set forth in such other document or the invalidity of any
provision thereof.
20. TIME PERIODS. Any action required to be taken under this
Agreement within a certain number of days shall be taken within that number of
calendar days, PROVIDED that if the last day for taking such action falls on a
weekend or a holiday, the period during which such action may be taken shall be
automatically extended to the next business day.
21. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
14
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by an authorized officer and the Executive has hereunto set his hand
all as of the day, month and year first above written.
SAMSONITE CORPORATION
By: /S/ ROBERT H. FALK
----------------------------
Name: Robert H. Falk
Title: Asst. Secretary
Executive:
/S/ RICHARD R. NICOLOSI
--------------------------------
Richard R. Nicolosi
May 15, 1996
<PAGE>
BROWNSTEIN HYATT FARBER & STRICKLAND, P.C. EXHIBIT 5
410 Seventeenth Street, 22nd Floor
Denver, Colorado 80202
June 7, 1996
Samsonite Corporation
11220 East 45th Avenue
Denver, Colorado 80239
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") filed today with the Securities and Exchange
Commission by Samsonite Corporation, a Delaware corporation (the "Company"), in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of 3,346,700 shares (the "Shares") of the Company's Common Stock,
par value $.01 per share, to be issued under the Plans (as defined in the
Registration Statement).
In connection with this opinion, we have examined such documents,
certificates, instruments and other records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein. In our examination,
we have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such copies.
Additionally, we have examined such questions of law and fact as we have
considered necessary or appropriate for purposes of this opinion.
Based upon the foregoing, it is our opinion that all of the Shares have
been duly authorized, and when issued and delivered in accordance with the terms
of the appropriate Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the prospectus that is a part of the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Act.
Very truly yours,
BROWNSTEIN HYATT FARBER & STRICKLAND, P.C.
<PAGE>
EXHIBIT 23 (b)
CONSENT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS
SAMSONITE CORPORATION:
We consent to incorporation by reference in the registration statement on Form
S-8 of Samsonite Corporation for the Samsonite Corporation 1995 Stock Option and
Incentive Award Plan (as Amended in 1996), Stock Option Agreement for Richard R.
Nicolosi, Stock Option Agreement for Steven J. Green, Share Option Agreement for
Steven J. Green, and the Stock Option Plan and Agreement for Gregory Wm. Hunt,
of our report dated March 19, 1996, relating to the consolidated balance sheets
of Samsonite Corporation and subsidiaries as of January 31, 1996 and 1995, and
the related consolidated statements of operations, stockholders' equity, and
cash flows for the years ended January 31, 1996 and 1995, for the seven months
ended January 31, 1994, and for the five months ended June 30, 1993, and the
related financial statement schedule, which report appears in the January 31,
1996, annual report on Form 10-K of Samsonite Corporation, and to the reference
to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Denver, Colorado
June 5, 1996
