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Exhibit 10.2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
_____________________________________________________________________________
Civil Action No. 99-K-705
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R. THEODORE AMMON, MARK H. RACHESKY,
ROBERT L. ROSEN and BERNARD ATTAL,
Defendants,
and
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
_____________________________________________________________________________
STIPULATION OF SETTLEMENT
_____________________________________________________________________________
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This Stipulation of Settlement dated as of April 28, 2000 (the
"Stipulation"),/1/ is made and entered into by and among the following Settling
Parties: (i) The Representative Plaintiffs (on behalf of themselves and each of
the Class Members and derivatively on behalf of Samsonite Corporation), by and
through their counsel of record in the Litigation; and (ii) the Defendants by
and through their counsel of record in the Litigation. This Stipulation is
intended by the Settling Parties to fully, finally and forever compromise,
release, resolve, discharge and settle the Released Claims, upon and subject to
the terms and conditions hereof.
. THE LITIGATION
On and after August 28, 1998, actions were filed in the United States
District Court for the District of Colorado (the "Court") as putative securities
class actions on behalf of Persons who purchased or otherwise acquired the
common stock or options of Samsonite Corporation ("Samsonite").
By order dated December 17, 1998, these actions were consolidated for all
purposes as In re Samsonite Corporation Securities Litigation, Civil Action No.
C-98-K-1878 (the "Federal Actions"). The operative complaint is the Amended
Consolidated Class Action Complaint for Violations of: (1) the Securities
Exchange Act of 1934; (2) the Colorado Securities Act; and (3) Delaware Statute
and Common Law, dated April 28, 2000 (the "Complaint"). The Complaint alleges
violations of (S)(S)10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, the Colorado Securities Act, C.R.S. (S)11-51-
501(1)(a)-(c), (S)(S)11-51-604(5)(b) and 11-51-604(5)(c); Breach of Fiduciary
Duty; and Equitable Fraud.
On or after March 13, 1998, two actions were filed in the District Court
for the City and County of Denver, Colorado (the "State Court") as putative
class actions on behalf of
________________________
/1/ All capitalized terms shall have the meaning ascribed to them in Section IV
hereof.
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Persons who purchased or otherwise acquired Samsonite common stock or options
during a defined period of time, entitled Knudson v. Samsonite Corporation, et
al., Case No. 98CV2210, and Krasner v. Samsonite Corporation, et al., Case No.
98-CV-6511 (collectively, the "State Court Actions"). The complaints in the
State Court Actions allege violations of the Colorado securities laws, (S)(S)11-
51-501 and 11-51-604.
On March 9, 1999, a derivative action entitled Klinger v. Nicolosi, et al.,
No. 99-CV-1305, was filed in the District Court for the City and County of
Denver, Colorado on behalf of Samsonite. This action (the "Derivative Action")
alleges claims for intentional and negligent breach of fiduciary duty,
constructive fraud and unjust enrichment. The Derivative Action was removed to
this Court on April 8, 1999.
On July 1, 1998, a class action entitled Weiss v. Samsonite Corporation, et
al., C.A. No. 16503, was filed in the Court of Chancery of the State of Delaware
on behalf of all owners of Samsonite common stock during the pendency of
Samsonite's self-tender offer (the "Delaware Action"). The Delaware Action
alleges claims for breach of fiduciary duty of disclosure, entire fairness and
breach of fiduciary duty, and equitable fraud. The Delaware Action was
dismissed and the Order of Dismissal was affirmed on appeal and no further
appellate remedy was sought. No class was ever certified in the Delaware
Action. The material allegations of the Delaware Action now have been alleged
in the Complaint.
The Federal Actions, the State Court Actions and the Derivative Action
hereinafter are referred to collectively as the "Litigation."
. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
The Defendants have denied and continue to deny each and all of the claims
and contentions alleged by the Representative Plaintiffs in the Litigation. The
Defendants expressly have denied and continue to deny all charges of wrongdoing
or liability against them arising out of any of the conduct, statements, acts or
omissions alleged, or that could
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have been alleged, in the Litigation. The Defendants also have denied and
continue to deny, inter alia, the allegations that the Representative
Plaintiffs, the Class or Samsonite have suffered damage, that the price of
Samsonite securities was artificially inflated by reasons of alleged
misrepresentations, non-disclosures or otherwise, or that the Representative
Plaintiffs, the Class or Samsonite were harmed by the conduct alleged in the
Litigation.
Nonetheless, the Defendants have concluded that further conduct of the
Litigation would be protracted and expensive, and that it is desirable that the
Litigation be fully and finally settled in the manner and upon the terms and
conditions set forth in this Stipulation. The Defendants also have taken into
account the uncertainty and risks inherent in any litigation, especially in
complex cases like the Litigation. The Defendants, therefore, have determined
that it is desirable and beneficial to them that the Litigation be settled in
the manner and upon the terms and conditions set forth in this Stipulation.
. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT
The Representative Plaintiffs believe that the claims asserted in the
Litigation have merit. However, counsel for the Representative Plaintiffs
recognize and acknowledge the expense and length of continued proceedings
necessary to prosecute the Litigation against the Defendants through trial and
through appeals. Counsel for the Representative Plaintiffs also have taken into
account the uncertain outcome and the risk of any litigation, especially in
complex actions such as the Litigation, as well as the difficulties and delays
inherent in such litigation. Counsel for the Representative Plaintiffs also are
mindful of the inherent problems of proof under and possible defenses to the
violations asserted in the Litigation. Counsel for the Representative Plaintiffs
believe that the settlement set forth in this Stipulation confers substantial
benefits upon the Class and Samsonite. Based on their evaluation, counsel for
the Representative Plaintiffs have determined that the settlement set
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forth in this Stipulation is in the best interests of the Representative
Plaintiffs, the Class and Samsonite.
. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the
Representative Plaintiffs (for themselves, the Class Members and derivatively on
behalf of Samsonite), and the Defendants, by and through their respective
counsel or attorneys of record, that, subject to the approval of the Court and
the State Court, the Litigation and the Released Claims shall be finally and
fully compromised, released, resolved, relinquished, discharged and settled,
and the Litigation shall be dismissed with prejudice and without costs, as to
all Settling Parties and Released Persons, and without any adverse findings or
conclusions against any of the Released Persons, upon and subject to the terms
and conditions of this Stipulation, as follows:
0. Definitions
As used in this Stipulation, the following terms have the meanings
specified below:
0.0 "Authorized Claimant" means any Class Member whose claim for recovery
has been allowed pursuant to the terms of the Judgment.
0.0 "Claimant" means any Class Member who files a Proof of Claim in such
form and manner, and within such time, as the Court shall prescribe.
0.0 "Claims Administrator" means the firm of Gilardi & Co. LLC or such
other Persons designated by the Court.
0.0 "Class" means a class consisting of all Persons (other than those
Persons who timely and validly request exclusion from the Class) who purchased
or otherwise acquired the common stock or purchased or sold options of Samsonite
during the period September 10, 1996 through and including August 11, 1998, or
owned Samsonite common stock at the time of the Reorganization Plan in June
1998. Excluded from the Class are the Defendants
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and the Related Persons(the "Excluded Persons"), members of the immediate family
of each of the Excluded Persons, any entity in which any Excluded Person has or
had a controlling interest during the Class Period, directors and officers of
Samsonite during the Class Period, and the legal representatives, heirs,
successors, or assigns of any such Excluded Person.
0.0 "Class Period" means the period commencing on September 10, 1996
through and including August 11, 1998.
0.0 "Class Member" or "Member of the Class" means a Person who falls
within the definition of the Class.
0.0 "Defendants" means Samsonite, Carl C. Icahn, Richard Nicolosi, Leon D.
Black, Robert H. Falk, Marc J. Rowan, Apollo Investment Fund, L.P., Lion
Advisors, L.P., Apollo Advisors, L.P., Luc Van Nevel, Thomas R. Sandler, Richard
H. Wiley, R. Theodore Ammon, Mark H. Rachesky, Robert L. Rosen and Bernard
Attal. The parties to this Stipulation acknowledge that Carl C. Icahn is a
"Defendant" solely in the State Court Actions, not the Federal Actions, the
Derivative Action or the Delaware Action. Mr. Icahn's participation in this
Stipulation shall not be deemed a consent to the jurisdiction of this Court for
any purpose other than the implementation and administration of the settlement
reflected herein, nor shall such participation be deemed a waiver or admission
with respect to any claim or defense except as otherwise expressly provided
herein.
0.0 "Effective Date" means the first date by which all of the events and
conditions specified in (P)7.1 of (S)IV of this Stipulation have been met and
have occurred.
0.0 "Escrow Agent" means the law firm of Milberg Weiss Bershad Hynes &
Lerach LLP or its successor(s).
0.0 "Final" means the latest of: (i) if an appeal is filed, (a) the date
of final affirmance on an appeal of a Judgment, the expiration of the time for a
petition for or a denial of a writ of certiorari to review a Judgment and, if
certiorari is granted, the date of final affirmance of a Judgment following
review pursuant to that grant, or (b) the date of final
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dismissal of any appeal from a Judgment or the final dismissal of any proceeding
on certiorari to review a Judgment; or (ii) if no appeal is filed, the
expiration date of the time for the filing or noticing of any appeal from a
Judgment, i.e., thirty (30) days after entry of a Judgment. Any proceeding or
order, or any appeal or petition for a writ of certiorari, pertaining solely to
any plan of allocation and/or any application for attorneys' fees, costs or
expenses, shall not in any way delay or preclude a Judgment from becoming Final.
0.0 "Judgment" collectively means the judgments or orders to be rendered
and entered by the Court in the Federal Action and by the State Court in the
State Court Actions and the Derivative Action, in the forms attached hereto as
Exhibits B, D and E or in a form acceptable to counsel for the Representative
Plaintiffs and the Defendants.
0.0 "Person" means an individual, corporation, limited liability
corporation, professional corporation, limited liability partnership,
partnership, limited partnership, association, joint stock company, estate,
legal representative, trust, unincorporated association, government or any
political subdivision or agency thereof, and any business or legal entity and
their respective spouses, heirs, predecessors, successors, representatives, or
assignees.
0.0 "Plaintiffs' Settlement Counsel" means Co-Lead Counsel for plaintiffs
in the Litigation: Milberg Weiss Bershad Hynes & Lerach LLP, William S. Lerach,
Keith F. Park, Spencer A. Burkholz, 600 W. Broadway, Suite 1800, San Diego,
California, 92101-5050, Telephone (619) 231-1058; Dyer Donnelly, Robert J. Dyer,
III, 801 East 17th Avenue, Denver, CO 80218, Telephone (303) 861-3003; and
Barrack, Rodos & Bacine, Stephen R. Basser, 600 W. Broadway, Suite 1700, San
Diego, California 92101, Telephone: (619) 230-0800.
0.0 "Plan of Allocation" means a plan or formula of allocation of the
Settlement Fund whereby the Settlement Fund shall be distributed to Authorized
Claimants after payment of expenses of notice and administration of the
settlement, Taxes and Tax Expenses,
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and such attorneys' fees, costs, expenses and interest as may be awarded by the
Court. Any Plan of Allocation is not part of this Stipulation and the Released
Persons shall have no responsibility or liability with respect thereto.
0.0 "Related Persons" means Artemis and its affiliates and each and all of
the Defendants and each and all of their respective affiliates and each and all
of their respective past or present directors, officers, managers, employees,
general partners, limited partners, members, principals, agents, underwriters,
insurers, co-insurers, reinsurers, shareholders, attorneys, advisors,
accountants, auditors, banks, investment banks, financial advisors, associates,
personal, legal or other representatives, predecessors, successors, parents,
subsidiaries, divisions, joint ventures, assigns, spouses, heirs, related or
affiliated entities, any entity in which a Defendant has a controlling interest,
any members of their respective immediate families, or any trust of which any
Defendant is the settlor or which is for the benefit of any Defendant and/or
member(s) of his family, and each and all of their respective executors,
successors, assigns and legal representatives.
0.0 "Released Claims" means the Released Class Claims and Released
Derivative Claims.
0.0 "Released Class Claims" collectively means any and all claims
(including "Unknown Claims"), demands, rights, liabilities and causes of action
of every nature and description whatsoever, known or unknown, whether or not
concealed or hidden, asserted or that might have been asserted, including,
without limitation, claims for negligence, gross negligence, breach of duty of
care and/or breach of duty of loyalty, fraud, breach of fiduciary duty, or
violation of any state or federal statutes, rules or regulations, by any
Representative Plaintiff or Class Member against any or all of the Released
Persons arising out of, based upon or related to both (i) the purchase, other
acquisition or sale of Samsonite common stock and/or the purchase, other
acquisition or sale of Samsonite options during the Class Period by any Class
Member; and (ii) the facts, transactions, events, occurrences, acts,
disclosures,
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statements, omissions or failures to act which were or could have been alleged
in the Litigation.
0.0 "Released Derivative Claims" means any and all claims (including
"Unknown Claims"), demands, rights, liabilities and causes of action of every
nature and description whatsoever, known or unknown whether or not concealed or
hidden, asserted or that might have been asserted, including, without
limitation, claims for negligence, gross negligence, breach of duty of care
and/or breach of duty of loyalty, fraud, breach of fiduciary duty, or violations
of any state or federal statutes, rules or regulations that have been or could
have been asserted by Samsonite or Samsonite Shareholders on behalf of
Samsonite, or any of them, against any or all of the Released Persons in the
Derivative Action arising out of, based upon or related to the facts,
transactions, events, occurrences, acts, disclosures, statements, omissions or
failures to act which were alleged or could have been alleged in the Litigation.
0.0 "Released Persons" means each and all of the Defendants and each and
all of the Related Persons.
0.0 "Reorganization Plan" means Samsonite's self-tender offer commenced on
or about May 20, 1998.
0.0 "Representative Plaintiffs" means each of the plaintiffs who filed a
complaint in the Litigation.
0.0 "Representative Plaintiffs' Counsel" means counsel who have appeared
for any of the Representative Plaintiffs in the Litigation.
0.0 "Samsonite Shareholders" means all shareholders of Samsonite as of
April 28, 2000.
0.0 "Settlement Fund" means the principal amount of Twenty-Four Million
Dollars ($24,000,000) in cash, plus any accrued interest on the Settlement Fund.
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0.0 "Settling Parties" means, collectively, each of the Defendants and the
Representative Plaintiffs on behalf of themselves and the Members of the Class
and derivatively on behalf of Samsonite.
0.0 "Unknown Claims" means any and all Released Class Claims or Released
Derivative Claims which any Representative Plaintiff, Class Member or Samsonite
Shareholder does not know or suspect to exist in his, her or its favor at the
time of the release of the Released Persons which, if known by him, her or it,
might have affected his, her or its settlement with and release of any or all of
the Released Persons, or might have affected his, her or its decision not to
object to this settlement or not to exclude himself, herself or itself from the
Class. With respect to any and all Released Class Claims and Released
Derivative Claims, the Settling Parties stipulate and agree that, upon the
Effective Date, the Representative Plaintiffs expressly shall, and each of the
Class Members and Samsonite Shareholders shall be deemed to have, and by
operation of the Judgment shall have, expressly waived the provisions, rights
and benefits of California Civil Code (S)1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Representative Plaintiffs expressly shall have, and each of the Class
Members and Samsonite Shareholders shall be deemed to have, and by operation of
the Judgment shall have, expressly waived any and all provisions, rights and
benefits conferred by any law of any state or territory of the United States or
any other country, or principle of common or civil law, which is similar,
comparable or equivalent to California Civil Code (S)1542. The Representative
Plaintiffs, Class Members and Samsonite Shareholders hereafter may discover
facts in addition to or different from those which he, she or it now knows or
believes to be true with respect to the subject matter of any or all of the
Released Claims, but each Representative Plaintiff expressly shall and each
Class Member and each Samsonite
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Shareholder, upon the Effective Date, shall be deemed to have, and by operation
of the Judgment shall have, fully, finally and forever compromised, released,
resolved, relinquished, discharged and settled any and all of the Released Class
Claims, and any and all of the Released Derivative Claims, known or unknown,
suspected or unsuspected, contingent or non-contingent, whether or not concealed
or hidden, which now exist, or heretofore have existed upon any theory of law or
equity now existing or coming into existence in the future, including, but not
limited to, conduct which is negligent, intentional, with or without malice, or
a breach of any duty, law or rule, without regard to the subsequent discovery or
existence of such different or additional facts. The Representative Plaintiffs
acknowledge, and the Class Members and Samsonite Shareholders, shall be deemed
by operation of the Judgment to have acknowledged, that the foregoing waiver was
separately bargained for and a key element of the settlement of which this
release is a part.
0. The Settlement
a. The Settlement Fund
0.0 The principal amount of $24,000,000 (plus any accrued interest) shall
constitute the Settlement Fund. On or before January 18, 2000, Samsonite's
insurance carrier transferred said $24,000,000 into an interest bearing account
(the "Lewis D'Amato Account") maintained by Lewis D'Amato Brisbois & Bisgaard,
L.L.P. (the "Lewis D'Amato Firm"). The Settlement Fund shall be paid by wire
transfer into a segregated, interest bearing account maintained by the Escrow
Agent within five (5) business days following preliminary approval of the
settlement set forth in this Stipulation, as provided in (P)3 of this (S)IV.
b. The Escrow Agent
0.0 The Escrow Agent shall invest the Settlement Fund deposited pursuant
to (P)2.1 of this (S)IV in instruments backed by the full faith and credit of
the United States Government or fully insured by the United States Government or
an agency thereof and shall reinvest the proceeds of these instruments as they
mature in similar instruments at their then current
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market rates. The Escrow Agent shall bear all risks related to investment of the
Settlement Fund.
0.0 The Escrow Agent shall not disburse the Settlement Fund except as
provided in this Stipulation, by an order of the Court, or with the written
agreement of counsel for the Defendants and the Plaintiffs' Settlement Counsel.
0.0 Subject to further order and/or directions as may be made by the
Court, the Escrow Agent is authorized to execute such transactions on behalf of
the Class Members as are consistent with the terms of this Stipulation.
0.0 All funds held by the Escrow Agent shall be deemed and considered to
be in custodia legis of the Court, and shall remain subject to the jurisdiction
of the Court, until such time as such funds shall be distributed pursuant to
this Stipulation and/or further order(s) of the Court.
0.0 Within ten (10) days after payment of the cash portion of the
Settlement Fund to the Escrow Agent pursuant to Section 2.1 of this (S)IV, the
Escrow Agent may establish a "Notice and Administration Fund," and may deposit
up to $100,000 from the Settlement Fund in it. The Notice and Administration
Fund may be used by the Plaintiffs' Settlement Counsel to pay costs and expenses
reasonably and actually incurred in connection with providing notice to the
Class and current holders of Samsonite common stock, locating Class Members,
soliciting class claims, assisting with the filing of claims, administering and
distributing the Settlement Fund to Authorized Claimants, processing Proof of
Claim and Release forms, and paying escrow fees and costs, if any. The Notice
and Administration Fund also may be invested and earn interest as provided for
in Section 2.2 of this (S)IV.
c. Taxes
0.0 The Settling Parties and the Escrow Agent agree to treat the
Settlement Fund as being at all times a "qualified settlement fund" within the
meaning of Treas. Reg. (S)1.468B-1. In addition, the Escrow Agent timely shall
make such elections as necessary or
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advisable to carry out the provisions of this Section 2.7, including the
"relation-back election" (as defined in Treas. Reg. (S)1.468B-1) back to the
earliest permitted date. Such elections shall be made in compliance with the
procedures and requirements contained in such regulations. It shall be the
responsibility of the Escrow Agent timely and properly to prepare and deliver
the necessary documentation for signature by all necessary parties, and
thereafter to cause the timely and appropriate filing to occur.
(a) For the purpose of (S)468B of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder, the "administrator"
shall be the Escrow Agent. The Escrow Agent timely and properly shall file all
informational and other tax returns necessary or advisable with respect to the
Settlement Fund (including, without limitation, the returns described in Treas.
Reg. (S)1.468B-2(k)). Such returns (as well as the election described in this
Section 2.7 shall be consistent with this Section 2.7 and in all events shall
reflect that all Taxes/2/ (including any estimated Taxes, interest or penalties)
on the income earned by the cash portion of the Settlement Fund shall be paid
out of the Settlement Fund as provided in Section 2.7(b) of this (S)IV.
(a) All (i) Taxes (including any estimated Taxes, interest or
penalties) arising with respect to the income earned by the Settlement Fund,
including any Taxes or tax detriments that may be imposed upon any or all of the
Defendants, any or all of their counsel or the Lewis D'Amato Firm with respect
to any income earned by the Settlement Fund for any period during which the
Settlement Fund does not qualify as a "qualified settlement fund" for federal or
state income tax purposes ("Taxes"), and (ii) expenses and costs incurred in
connection with the operation and implementation of this Section 2.7 (including,
without limitation, expenses of tax attorneys and/or accountants and mailing and
distribution costs and expenses relating to filing (or failing to file) the
returns described in this Section 2.7) ("Tax Expenses"), shall be paid out of
the Settlement Fund; in all events neither any or all of the
________________________
/2/ As such term is defined below in Section 2.7(b)(i) of this (S)IV.
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Defendants, any or all of their counsel nor the Lewis D'Amato Firm shall have
any liability or responsibility for the Taxes or the Tax Expenses. The Escrow
Agent shall indemnify and hold each and all of the Defendants, each and all of
their counsel and the Lewis D'Amato Firm harmless for Taxes and Tax Expenses
(including, without limitation, Taxes payable by reason of any such
indemnification). Further, Taxes and Tax Expenses shall be treated as, and
considered to be, a cost of administration of the Settlement Fund and timely
shall be paid by the Escrow Agent out of the Settlement Fund without prior order
from the Court and the Escrow Agent shall be obligated (notwithstanding anything
herein to the contrary) to withhold from distribution to Authorized Claimants
any funds necessary to pay such amounts including the establishment of adequate
reserves for any Taxes and Tax Expenses (as well as any amounts that may be
required to be withheld under Treas. Reg. (S)1.468B-2(1)(2)); neither any or all
of the Released Persons, the Lewis D'Amato Firm nor any or all of their counsel
are responsible nor shall any or all of them have any liability therefor. The
parties hereto agree to cooperate with the Escrow Agent, each other, and their
respective tax attorneys and accountants to the extent reasonably necessary to
carry out the provisions of this Section 2.7.
(a) For the purpose of this Section 2.7, references to the Settlement
Fund shall include both the Settlement Fund and the Notice and Administration
Fund, and also shall include any earnings thereon.
d. Termination of Settlement
0.0 In the event that the Stipulation is not approved, or is terminated,
canceled or fails to become effective for any reason, the Settlement Fund
(including accrued interest) less expenses actually incurred or due and owing in
connection with the settlement provided for in this Stipulation, shall be
refunded to the Defendants as described in Section 7.5 of this (S)IV.
e. Derivative Settlement
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0.0 In settlement of the Derivative Action, Samsonite shall implement the
corporate governance measures set forth in Exhibit C hereto.
0. Notice Order and Settlement Hearing
0.0 Promptly after execution of this Stipulation, Plaintiffs' Settlement
Counsel and Defendants' counsel shall submit this Stipulation together with its
Exhibits to the Court and shall apply for entry of an order (the "Notice
Order"), substantially in the form of Exhibit A hereto, requesting, inter alia,
the preliminary approval of the settlement set forth in this Stipulation, and
approval for the mailing and publication of settlement notices (the "Notice"),
substantially in the form of Exhibits A-1 through A-4 hereto, which shall
include the general terms of the settlement set forth in this Stipulation, the
proposed Plan of Allocation, the general terms of the Fee and Expense
Application as defined in Section 6.1 of this (S)IV and the date of the
Settlement Hearing (as defined in Section 3.2 below).
0.0 The Plaintiffs' Settlement Counsel shall request that after notice is
given, the Court hold a hearing (the "Settlement Hearing") and approve the
settlement of the Litigation as set forth herein. At or after the Settlement
Hearing, Plaintiffs' Settlement Counsel also will request that the Court approve
the proposed Plan of Allocation and the Fee and Expense Application.
0. Releases
0.0 Upon the Effective Date, the Representative Plaintiffs and each of
the Class Members and Samsonite Shareholders shall be deemed to have, and by
operation of the Judgment shall have, fully, finally and forever compromised,
released, resolved, relinquished, discharged and settled, respectively, all of
the Released Class Claims and all of the Released Derivative Claims and any and
all claims (including Unknown Claims), demands, rights, liabilities and causes
of action of every nature and description whatsoever, known or hidden, asserted
or that might have been asserted, arising out of, relating to or in connection
with the settlement or resolution of the Litigation against any and all of the
Released Persons.
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0.0 The Proof of Claim and Release to be executed by Class Members shall
release all Released Claims against all of the Released Persons and shall be
substantially in the form contained in Exhibit A-5 hereto.
0.0 Upon the Effective Date, each of the Released Persons shall be deemed
to have, and by operation of the Judgment shall have, fully, finally and forever
released, relinquished and discharged each and all of the Class Members,
Samsonite Shareholders and counsel to the Representative Plaintiffs from all
claims (including Unknown Claims), arising out of, relating to or in connection
with the institution, prosecution, assertion, settlement or resolution of the
Litigation or the Released Claims.
0. Administration and Calculation of Claims and Supervision and
Distribution of Settlement Fund
0.0 Plaintiffs' Settlement Counsel, or their authorized agents, acting on
behalf of the Class, and subject to such supervision and direction of the Court
as may be necessary or as circumstances may require, shall administer and
calculate the claims submitted by Class Members and shall oversee distribution
of the Net Settlement Fund (defined below) to the Authorized Claimants. The
Settlement Fund shall be applied as follows:
(a) to pay all the costs and expenses reasonably and actually
incurred in connection with providing notice, locating Class Members and
Samsonite Shareholders, soliciting class claims, assisting with the filing of
claims, administering and distributing the Settlement Fund to Authorized
Claimants, processing Proof of Claim and Release forms, and paying escrow fees
and costs, if any;
(a) to pay the Taxes and Tax Expenses described in (P)2.7 of this
(S)IV;
(a) to pay to Representative Plaintiffs' Counsel attorneys' fees,
expenses and costs with interest thereon (the "Fee and Expense Award"), if and
to the extent allowed by the Court; and
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(a) to distribute the balance of the Settlement Fund (the "Net
Settlement Fund") to Authorized Claimants as allowed by the Stipulation, the
Plan of Allocation or the Court.
0.0 Upon the Effective Date and thereafter, and in accordance with the
terms of this Stipulation, the Plan of Allocation, or such further approval and
further order(s) of the Court as may be necessary or as circumstances may
require, the Net Settlement Fund shall be distributed to Authorized Claimants,
subject to and in accordance with the following:
(a) Within ninety (90) days after the mailing of the Notice or such
other time as may be set by the Court, each Person claiming to be an Authorized
Claimant shall be required to submit to the Claims Administrator a completed
Proof of Claim and Release form, substantially in the form of Exhibit A-5
hereto, signed under penalty of perjury and supported by such documents as
specified in the Proof of Claim and Release form and as are reasonably available
to the Authorized Claimant.
(a) Except as otherwise ordered by the Court, all Class Members who
fail to timely submit a Proof of Claim and Release form within such period, or
such other period as may be ordered by the Court, or otherwise allowed, shall be
forever barred from receiving any payments pursuant to this Stipulation and the
settlement set forth herein, but will in all other respects be subject to and
bound by the provisions of this Stipulation, including, without limitation, the
releases contained herein, and the Judgment.
(a) The Net Settlement Fund shall be distributed to the Authorized
Claimants substantially in accordance with a Plan of Allocation to be described
in the Notice and approved by the Court. However, if there is any balance
remaining in the Net Settlement Fund after six months from the date of
distribution of the Net Settlement Fund (whether by reason of tax refunds,
uncashed checks or otherwise), Plaintiffs' Settlement Counsel shall reallocate
such balance among Authorized Claimants in an equitable and economic fashion.
-16-
<PAGE>
Thereafter, any balance which still remains in the Net Settlement Fund shall be
donated to an appropriate non-profit organization.
0.0 The Released Persons shall have no responsibility for, interest in or
liability whatsoever with respect to the investment or distribution of the Net
Settlement Fund, the Plan of Allocation, the determination, administration, or
calculation of claims, the payment or withholding of Taxes, or any losses
incurred in connection therewith.
0.0 No Person shall have any claim against Plaintiffs' Settlement Counsel
or the Claims Administrator, or other agent designated by Plaintiffs' Settlement
Counsel, or any or all of the Released Persons or their respective counsel based
on the distributions made substantially in accordance with this Stipulation and
the settlement contained herein, the Plan of Allocation or orders of the Court.
0.0 It is understood and agreed by the Settling Parties that any proposed
Plan of Allocation of the Net Settlement Fund including, but not limited to, any
adjustments to an Authorized Claimant's claim, is not a part of this Stipulation
and is to be considered by the Court separately from the Court's consideration
of the fairness, reasonableness and adequacy of the settlement set forth in this
Stipulation, and any order or proceedings relating to the Plan of Allocation
shall not operate to terminate or cancel this Stipulation or affect the finality
of the Judgment approving this Stipulation and the settlement set forth herein,
or any other orders entered pursuant to this Stipulation.
0. Representative Plaintiffs' Counsel's Attorneys' Fees and Reimbursement
of Expenses
0.0 Representative Plaintiffs' Counsel may submit an application or
applications (the "Fee and Expense Application") for distributions to them from
the Settlement Fund for: (a) an award of attorneys' fees plus (b) reimbursement
of expenses incurred in connection with prosecuting the Litigation, plus any
interest on such attorneys' fees and expenses at the same rate and for the same
periods as earned by the Settlement Fund (until paid) as may be
-17-
<PAGE>
awarded by the Court. Representative Plaintiffs' Counsel reserve the right to
make additional applications to the Court for fees and expenses incurred.
0.0 The attorneys' fees and expenses, as awarded by the Court, shall be
paid to Plaintiffs' Settlement Counsel from the Settlement Fund, as ordered,
immediately after the Court executes an order awarding such fees and expenses.
Plaintiffs' Settlement Counsel thereafter shall allocate the attorneys' fees
amongst Representative Plaintiffs' Counsel in a manner in which they in good
faith believe reflects the contributions of such counsel to the prosecution and
settlement of the Litigation. In the event that the Effective Date does not
occur, or the Judgment or the order making the Fee and Expense Award is reversed
or modified, or the Stipulation is canceled or terminated for any other reason,
and in the event that the Fee and Expense Award has been paid to any extent,
then Representative Plaintiffs' Counsel shall within five (5) business days from
receiving notice from counsel for Samsonite or from a court of appropriate
jurisdiction, refund to the Settlement Fund, the fees and expenses previously
paid to them from the Settlement Fund plus interest thereon at the same rate as
earned on the Settlement Fund in an amount consistent with such reversal or
modification. Each of Representative Plaintiffs' Counsel's law firms, as a
condition of receiving such fees and expenses, on behalf of itself and each
partner and/or shareholder of it, agrees that the law firm and its partners
and/or shareholders are subject to the jurisdiction of the Court for the purpose
of enforcing the provisions of this paragraph.
0.0 The procedure for and the allowance or disallowance by the Court of
any applications by any of Representative Plaintiffs' Counsel for attorneys'
fees, costs and expenses to be paid out of the Settlement Fund, are not part of
the settlement set forth in this Stipulation, and are to be considered by the
Court separately from the Court's consideration of the fairness, reasonableness
and adequacy of the settlement set forth in this Stipulation, and any order or
proceedings relating to the Fee and Expense Application, or any appeal from any
order relating thereto or reversal or modification thereof, shall not operate to
terminate
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<PAGE>
or cancel this Stipulation, or affect or delay the finality of a Judgment
approving this Stipulation and the settlement of the Litigation set forth
herein.
0.0 None of the Released Persons shall have any responsibility for, and
shall have no liability whatsoever with respect to, any payment to Plaintiffs'
Settlement Counsel from the Settlement Fund or otherwise.
0.0 None of the Released Persons shall have any responsibility for, and
shall have no liability whatsoever with respect to, the allocation among
Representative Plaintiffs' Counsel and/or any other Person who may assert some
claim thereto, of any Fee and Expense Award that the Court may make in the
Litigation.
0. Conditions of Settlement, Effect of Disapproval, Cancellation or
Termination
0.0 The Effective Date of this Stipulation shall be conditioned on the
occurrence of all of the following events:
(a) the Defendants solely through Samsonite's insurance carrier have
timely made their contributions to the Settlement Fund as required by Section
2.1 of this (S)IV;
(a) the Court has entered the Notice Order, as required by Section 3
of this (S)IV;
(a) Samsonite has not exercised its option to terminate the
Stipulation pursuant to Section 7.4 of this (S)IV;
(a) the Court has entered its Judgment;
(a) the Court's Judgment has become Final; and
(a) the State Court Actions and the Derivative Action have been
dismissed with prejudice and without cost pursuant to the appropriate Judgment,
and those dismissals have become Final.
0.0 Upon the occurrence of all of the events referenced in Section 7.1 of
this (S)IV, any and all remaining interest or right of the Defendants in or to
the Settlement Fund, if any, shall be absolutely and forever extinguished.
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<PAGE>
0.0 If all of the conditions specified in Section 7.1 of this (S)IV are
not met, then this Stipulation shall be cancelled and terminated subject to
Section 7.5 of this (S)IV unless Plaintiffs' Settlement Counsel and counsel for
the Defendants mutually agree in writing to proceed with this Stipulation.
0.0 Samsonite shall have the option to terminate this Stipulation in the
event that putative Class Members who purchased or otherwise acquired more than
a certain number of shares of Samsonite common stock during the Class Period
choose to exclude themselves from the Class, as set forth in a separate
agreement (the "Supplemental Agreement") executed by Representative Plaintiffs'
Counsel and counsel to the Defendants.
0.0 Unless otherwise ordered by the Court, in the event this Stipulation
shall terminate, or be canceled, or shall not become effective for any reason,
within five (5) business days after written notification of such event is sent
by counsel for Samsonite or Plaintiffs' Settlement Counsel to the Escrow Agent
or the Lewis D'Amato Firm, as the case may be, the Settlement Fund (including
accrued interest), plus any amount then remaining in the Notice and
Administration Fund (including accrued interest), less expenses and any costs
which have either been disbursed pursuant to Sections 2.6 or 2.7 of this (S)IV,
or are determined to be chargeable to the Notice and Administration Fund, shall
be refunded by the Escrow Agent to the Lewis D'Amato Account. At the request of
counsel for Samsonite, the Escrow Agent or its designee shall apply for any tax
refund owed to the Settlement Fund and pay the proceeds, after deduction of any
fees or expenses incurred in connection with such application(s) for refund,
pursuant to written instructions from counsel to Samsonite.
0.0 In the event that this Stipulation is not approved by the Court or the
settlement set forth in this Stipulation is terminated or fails to become
effective in accordance with its terms, the Settling Parties shall be restored
to their respective positions in the Litigation as of December 16, 1999. In
such event, the terms and provisions of this Stipulation, with the exception of
Sections 1.1-1.26, 2.1-2.8, 5.3-5.4, 6.4-6.5, 7.3-7.7, 8.1, 8.3-8.4, 8.6-8.14,
shall have
-20-
<PAGE>
no further force and effect with respect to the Settling Parties and shall not
be used in the Litigation or in any other action or proceeding for any purpose,
and any judgment or order entered by the Court in accordance with the terms of
this Stipulation shall be treated as vacated, nunc pro tunc. No order of the
Court or modification or reversal on appeal of any order of the Court concerning
the Plan of Allocation or the amount of any attorneys' fees, costs, expenses and
interest awarded by the Court to the Representative Plaintiffs or any of the
Representative Plaintiffs' Counsel shall constitute grounds for cancellation or
termination of this Stipulation.
0.0 If the Effective Date does not occur, or if this Stipulation is
terminated pursuant to its terms, neither any or all of the Representative
Plaintiffs nor any or all of the Representative Plaintiffs' Counsel shall have
any obligation to repay any amounts actually and properly disbursed from the
Notice and Administration Fund. In addition, any expenses already incurred and
properly chargeable to the Notice and Administration Fund pursuant to (P)2.6 of
this (S)IV or paid pursuant to Section 2.7 of this (S)IV at the time of such
termination or cancellation but which have not been paid, shall be paid by the
Escrow Agent in accordance with the terms of the Stipulation prior to the
balance being refunded in accordance with Section 7.5 of this (S)IV.
0.0 If a case is commenced in respect to any Defendant under Title 11 of
the United States Code (Bankruptcy), or a trustee, receiver or conservator is
appointed under any similar law, and in the event of the entry of a final order
of a court of competent jurisdiction determining the transfer of the Settlement
Fund, or any portion thereof, by or on behalf of such Defendant to be a
preference, voidable transfer, fraudulent transfer or similar transaction, then,
as to such Defendant, the releases given and the Judgment entered pursuant to
this Stipulation may be declared null and void by Plaintiffs' Settlement
Counsel.
-21-
<PAGE>
0. Miscellaneous Provisions
0.0 The Settling Parties (a) acknowledge that it is their intent to
consummate the settlement set forth in this Stipulation; and (b) agree to
cooperate to the extent reasonably necessary to effectuate and implement all
terms and conditions of this Stipulation and to exercise their best efforts to
accomplish the foregoing terms and conditions of this Stipulation.
0.0 Each Defendant warrants as to himself or itself that, at the time any
of the payments provided for herein are made on behalf of himself or itself, the
payment(s) will not render him or it insolvent. This representation is made by
each Defendant as to himself or itself and is not made by counsel for any or all
the Defendants.
0.0 The Settling Parties intend the settlement set forth in this
Stipulation to be a final and complete resolution of all disputes between them
with respect to the Litigation. The settlement set forth in this Stipulation
compromises claims which are contested and shall not be deemed an admission by
any Settling Party as to the merits of any claim or defense. While retaining
their respective rights to deny that the claims advanced in the Litigation were
meritorious, the Defendants in any statement made to any media representative
(whether or not for attribution) will not deny that, based upon the publicly
available information at the time, the Litigation was filed in good faith and is
being settled voluntarily after consultation with competent legal counsel. The
Judgment will contain a statement that during the course of the Litigation, the
parties and their respective counsel at all times complied with the requirements
of Federal Rule of Civil Procedure 11 and Colorado Rule of Civil Procedure 11.
The Settling Parties agree that the amount paid to the Settlement Fund and the
other terms of the settlement set forth in this Stipulation were negotiated in
good faith by the Settling Parties, and reflect a settlement that was reached
voluntarily after consultation with competent legal counsel. The Settling
Parties reserve their right to rebut, in a manner that
-22-
<PAGE>
such party determines to be appropriate, any contention made in any public forum
that the Litigation was brought or defended in bad faith or without a reasonable
basis.
0.0 Neither this Stipulation nor the settlement set forth herein, nor any
act performed or document executed pursuant to or in furtherance of this
Stipulation or the settlement set forth herein: (a) is or may be deemed to be or
may be used as an admission of, or evidence of, the validity of any or all of
the Released Claims, or of any wrongdoing or liability of any or all of the
Released Persons; or (b) is or may be deemed to be or may be used as an
admission of, or evidence of, any fault or omission of any or all of the
Released Persons in any civil, criminal or administrative proceeding in any
court, administrative agency or other tribunal. Any or all of the Released
Persons may file this Stipulation and/or the Judgment in any action or
proceeding that may be brought against him, it or them in order to support a
defense, counterclaim or the like, based on principles of res judicata,
collateral estoppel, release, good faith settlement, judgment bar or reduction,
or any other theory of claim preclusion or issue preclusion or similar defense
or counterclaim.
0.0 All agreements made and orders entered during the course of the
Litigation relating to the confidentiality of information shall survive this
Stipulation.
0.0 All of the Exhibits to this Stipulation are material and integral
parts hereof and fully are incorporated herein by this reference.
0.0 This Stipulation may be amended or modified only by a written
instrument signed by or on behalf of all Settling Parties or their respective
successors-in-interest.
0.0 This Stipulation and the Exhibits attached hereto and the Supplemental
Agreement constitute the entire agreement between the Representative Plaintiffs
and the Defendants and no representations, warranties or inducements have been
made to any party concerning this Stipulation or its Exhibits or the
Supplemental Agreement other than the representations, warranties and covenants
contained and memorialized in such documents. Except as otherwise provided
herein, each party shall bear its own costs.
-23-
<PAGE>
0.0 Plaintiffs' Settlement Counsel expressly are authorized by the
Representative Plaintiffs to take all appropriate action required or permitted
to be taken by the Class or the Samsonite Shareholders pursuant to this
Stipulation to effectuate its terms and also expressly are authorized to enter
into any modifications or amendments to this Stipulation on behalf of the Class
and/or the Samsonite Shareholders which they deem appropriate.
0.0 Each counsel or other Person executing this Stipulation or any of its
Exhibits on behalf of any party hereto hereby warrants that such Person has the
full authority to do so.
0.0 The Stipulation may be executed in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the same
instrument. A complete set of original executed counterparts shall be filed
with the Court.
0.0 The Stipulation shall be binding upon, and inure to the benefit of,
the heirs, successors, legal administrators and assigns of the parties hereto.
0.0 The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of this Stipulation, and all parties hereto submit to
the jurisdiction of the Court for purposes of implementing and enforcing the
settlement embodied in this Stipulation.
0.0 This Stipulation and the Exhibits hereto shall be considered to have
been negotiated, executed and delivered, and to be wholly performed, in the
State of Colorado, and the rights and obligations of the parties to this
Stipulation shall be construed and enforced in accordance with, and governed by,
the internal, substantive laws of the State of Colorado without giving effect to
that State's choice of law principles.
IN WITNESS WHEREOF, the parties hereto have caused this Stipulation to be
executed, by their duly authorized attorneys, dated as of April 28, 2000.
DYER DONNELLY
ROBERT J. DYER III
KIP B. SHUMAN
-24-
<PAGE>
/s/ Robert J. Dyer
-----------------------------------
ROBERT J. DYER III
801 East 17th Avenue
Denver, CO 80218
Telephone: 303/861-3003
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH
KEITH F. PARK
SPENCER A. BURKHOLZ
SANGEETA G. PATEL
/s/ Keith F. Park
-----------------------------------
KEITH F. PARK
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
PATRICK J. COUGHLIN
100 Pine Street, Suite 2600
San Francisco, CA 94111
Telephone: 415/288-4545
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
MATTHEW P. MONTGOMERY
/s/ Stephen R. Basser
-----------------------------------
STEPHEN R. BASSER
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: 619/230-0800
Co-Lead Counsel for the
Representative Plaintiffs
AKIN, GUMP, STRAUSS,
HAUER & FELD
STEVEN M. PESNER, P.C.
STEPHEN M. BALDINI
ANDREW J. ROSSMAN
JOHN W. BERRY
-25-
<PAGE>
/s/ Steven M. Pesner
-----------------------------------
STEVEN M. PESNER, P.C.
590 Madison Avenue, 19th Floor
New York, NY 10022-4616
Telephone: 212/872-1070
HOLME ROBERTS & OWEN LLP
BRUCE F. BLACK
1700 Lincoln Street, Suite 4100
Denver, CO 80203
Attorneys for Defendants Samsonite
Corporation, Richard R. Nicolosi,
Leon D. Black, Robert H. Falk, Marc
J. Rowan, Apollo Investment Fund,
L.P., Lion Advisors, L.P., Apollo
Advisors, L.P., Luc Van Nevel,
Thomas R. Sandler, Richard H.
Wiley, R. Theodore Ammon, Mark H.
Rachesky, Robert L. Rosen and
Bernard Attal
Agreed to and accepted:
PIPER MARBURY RUDNICK
& WOLFE LLP
THEODORE ALTMAN
/s/ Theodore Altmen
-----------------------------------
THEODORE ALTMAN
1251 Avenue of the Americas
New York, NY 10020-1104
Telephone: 212/835-6000
DAVIS, GRAHAM & STUBBS LLP
ALAN M. LOEB
CAROLE K. JEFFERY
370 17th Street, Suite 4700
Denver, CO 80202
Attorneys for Carl. C. Icahn
LEBEOUF, LAMB, GREENE
& MACRAE, L.L.P.
CARL A. EKLUND
ROBERT N. MILLER
-26-
<PAGE>
STEPHANIE E. DUNN
/s/ Robert N. Miller
-----------------------------------
ROBERT N. MILLER
633 Seventeenth Street
Denver, CO 80202
Telephone: 303/297-0422
Attorneys for Defendants Samsonite
Corporation, Richard R. Nicolosi,
Leon D. Black, Robert H. Falk, Marc
J. Rowan, Apollo Investment Fund,
L.P., Lion Advisors, L.P., Apollo
Advisors, L.P., Luc Van Nevel,
Thomas R. Sandler, Richard H.
Wiley, R. Theodore Ammon, Mark H.
Rachesky, Robert L. Rosen and
Bernard Attal
-27-
<PAGE>
Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
--------------------------------------------------------------------------------
Civil Action No. 99-K-705
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R. THEODORE AMMON, MARK H. RACHESKY,
ROBERT L. ROSEN and BERNARD ATTAL,
Defendants,
and
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
--------------------------------------------------------------------------------
[PROPOSED] ORDER PRELIMINARILY APPROVING
SETTLEMENT AND PROVIDING FOR NOTICE
--------------------------------------------------------------------------------
<PAGE>
WHEREAS, there is pending before this Court a consolidated class action
entitled In re Samsonite Corporation Sec. Litig., Civil Action No. 98-K-1878,
and a derivative action entitled Klinger v. Nicolosi, et al., Civil Action No.
99-K-705;
WHEREAS, the parties having made application, pursuant to Federal Rules of
Civil Procedure 23 and 23.1, for an order approving the settlement of the
Litigation, in accordance with a Stipulation of Settlement dated as of April 28,
2000 (the "Stipulation"), which, together with the Exhibits annexed thereto sets
forth the terms and conditions for a proposed settlement of the Litigation and
for dismissal of the Litigation with prejudice and without costs upon the terms
and conditions set forth therein; and the Court having read and considered the
Stipulation and the Exhibits annexed thereto; and
WHEREAS, all defined terms contained herein shall have the same meanings as
set forth in the Stipulation.
NOW, THEREFORE, IT IS HEREBY ORDERED:
0. For purposes of effectuating this settlement, Plaintiffs' Settlement
Counsel shall file the Complaint. The Court hereby exercises supplemental
jurisdiction over the state law claims alleged in the Complaint.
0. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court
hereby certifies, for purposes of effectuating this settlement, a Class defined
as all Persons (other than those Persons who timely and validly request
exclusion from the Class) who purchased or otherwise acquired the common stock
or purchased or sold options of Samsonite during the period September 10, 1996
through and including August 11, 1998, or owned Samsonite common stock at the
time of the Reorganization Plan in June 1998. Excluded from the Class are the
Defendants and the Released Persons (the "Excluded Persons"), members of the
immediate families of the Excluded Persons, any entity in which any Excluded
Person has or had a controlling interest during the Class Period, directors and
officers of Samsonite
-1-
<PAGE>
during the Class Period, and the legal representatives, heirs, successors or
assigns of any such Excluded Person.
0. The Court does hereby preliminarily approve the Stipulation and the
settlement set forth therein, subject to further consideration at the Settlement
Hearing described below.
0. A hearing (the "Settlement Hearing") shall be held before this Court
on ____________, 2000, at __:__ __.m., at the United States Courthouse, 1929
Stout Street, Denver, Colorado, to determine whether the proposed settlement of
the Litigation on the terms and conditions provided for in the Stipulation is
fair, just, reasonable and adequate to the Class and should be approved by the
Court; whether judgment(s) as provided in (P)1.11 of (S)IV of the Stipulation
should be entered herein; whether the proposed Plan of Allocation should be
approved; and to determine the amount of fees and expenses that should be
awarded to Representative Plaintiffs' Counsel. The Court may adjourn the
Settlement Hearing without further notice to Members of the Class.
0. The Court approves, as to form and content, the Notice of Pendency and
Proposed Settlement of Class Action (the "Class Notice"), the Notice of Pendency
and Settlement of Derivative Action (the "Derivative Notice"), the Summary
Notices and the Proof of Claim and Release form (the "Proof of Claim"), annexed
as Exhibits A-1, A-2, A-3, A-4 and A-5 hereto, respectively, and finds that the
mailing and distribution of the Class Notice and the Derivative Notice and
publishing of the Summary Notices substantially in the manner and form set forth
in this Order meets the requirements of Federal Rules of Civil Procedure 23 and
23.1 and due process, and is the best notice practicable under the circumstances
and shall constitute due and sufficient notice to all Persons entitled thereto.
0. Plaintiffs' Settlement Counsel hereby are authorized to retain the
firm of Gilardi & Co. LLC ("Claims Administrator") to supervise and administer
the notice procedure as well as the processing of claims as more fully set forth
below:
-2-
<PAGE>
(a) not later than ____________, 2000, (the "Notice Date"),
Plaintiffs' Settlement Counsel shall cause a copy of the Class Notice and the
Proof of Claim, substantially in the form annexed hereto as Exhibits A-1 and A-
5, to be mailed by first class mail to all Class Members who can be identified
with reasonable effort;
(a) not later than _____________, 2000, Plaintiffs' Settlement
Counsel shall cause a copy of the Derivative Notice to be mailed by first class
mail to all Samsonite Shareholders who can be identified with reasonable effort;
(a) not later than _____________, 2000, Plaintiffs' Settlement
Counsel shall cause the Summary Notices to be published once in the Investor's
Business Daily; and
(a) at least seven (7) days prior to the Settlement Hearing,
Plaintiffs' Settlement Counsel shall serve on the Defendants' counsel and file
with the Court proof, by affidavit or declaration, of such mailing and
publishing.
0. Nominees who purchased or otherwise acquired the common stock or
purchased or sold options of Samsonite during the period between September 10,
1996 through and including August 11, 1998, or held common stock in June 1998
for the beneficial ownership of another Person or for the benefit of a Samsonite
Shareholder shall send the Class Notice and the Proof of Claim or the Derivative
Notice, as appropriate, to such beneficial owners of such Samsonite stock within
ten (10) days after receipt thereof, or send a list of the names and addresses
of such beneficial owners to the Claims Administrator within ten (10) days of
receipt thereof in which event the Claims Administrator promptly shall mail the
Class Notice and Proof of Claim or the Derivative Notice as appropriate, to such
beneficial owners.
0. All Members of the Class and the Samsonite Shareholders shall be bound
by all determinations and judgments in the Litigation concerning the settlement,
whether favorable or unfavorable to the Class and the Samsonite Shareholders.
-3-
<PAGE>
0. Class Members who wish to participate in the settlement shall complete
and submit Proof of Claim forms in accordance with the instructions contained
therein. Unless the Court orders otherwise, all Proof of Claim forms must be
submitted no later than ninety (90) days from the Notice Date. Any Class Member
who does not timely submit a Proof of Claim within the time provided for, shall
be barred from sharing in the distribution of the proceeds of the Settlement
Fund, unless otherwise ordered by the Court.
0. Any Member of the Class or any Samsonite Shareholder may enter an
appearance in the Litigation, at his, her or its own expense, individually or
through counsel of their own choice. If he, she or it does not enter an
appearance, they will be represented by Plaintiffs' Settlement Counsel.
0. Pending final determination of whether the settlement should be
approved, neither the Representative Plaintiffs nor any Class Member or
Samsonite Shareholder, either directly, representatively, or in any other
capacity, shall commence or prosecute against any or all of the Released
Persons, any action or proceeding in any court or tribunal asserting any of the
Released Class Claims or the Released Derivative Claims.
0. Any Person falling within the definition of the Class may, upon
request, be excluded from the Class. Any such Person must submit to the Claims
Administrator a request for exclusion ("Request for Exclusion"), postmarked no
later than __________, 2000. A Request for Exclusion must state: (1) the name,
address and telephone number of the Person requesting exclusion; (2) the
Person's purchases and sales of Samsonite common stock or purchase or sale of
Samsonite options made during the Class Period, including the dates, the number
of shares, and price paid or received per share for each such purchase or sale;
and (3) that the Person wishes to be excluded from the Class. All Persons who
submit valid and timely Requests for Exclusion in the manner set forth in this
paragraph shall have no rights under the Stipulation, shall not share in the
distribution of the Settlement Fund, and shall not be bound by the Stipulation
or the Final Judgment.
-4-
<PAGE>
0. Any Member of the Class or any Samsonite Shareholder may appear and
show cause, if he, she or it has any, why the proposed settlement of the
Litigation should or should not be approved as fair, just, reasonable and
adequate, or why a Judgment should or should not be entered thereon, why the
Plan of Allocation should or should not be approved, or why attorneys' fees and
expenses should or should not be awarded to counsel for the Representative
Plaintiffs; provided, however, that no Class Member or Samsonite Shareholder
shall be heard or entitled to contest the approval of the terms and conditions
of the proposed settlement, or, if approved, the Judgment to be entered thereon
approving the same, or the order approving the Plan of Allocation, or the
attorneys' fees and expenses to be awarded to counsel for the Representative
Plaintiffs unless that Person has delivered by hand or sent by first class mail
written objections and copies of any papers and briefs such that they are
received on or before __________, 2000, by Milberg Weiss Bershad Hynes & Lerach
LLP, Keith F. Park, 600 W. Broadway, Suite 1800, San Diego, California, 92101-
5050, Telephone (619) 231-1058; Dyer Donnelly, Robert J. Dyer, III, 801 East
17th Avenue, Denver, Colorado 80218, Telephone (303) 861-3003; Barrack, Rodos &
Bacine, Stephen R. Basser, 600 W. Broadway, Suite 1700, San Diego, California
92101, Telephone: (619) 230-0800; Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
Steven M. Pesner, P.C., 590 Madison Avenue, 19th Floor, New York, New York
10022, Telephone (212) 872-1070; Piper Marbury Rudnick & Wolfe LLP, Theodore
Altman, 1251 Avenue of the Americas, New York, New York 10020-1104, and filed
said objections, papers and briefs with the Clerk of the United States District
Court for the District of Colorado on or before ___________, 2000. Any Member of
the Class or Samsonite Shareholder who does not make his, her or its objection
in the manner provided shall be deemed to have waived such objection and forever
shall be foreclosed from making any objection to the fairness, justness,
reasonableness or adequacy of the proposed settlement as incorporated in the
Stipulation, to the Plan of
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Allocation, and to the award of attorneys' fees and expenses to counsel for the
Representative Plaintiffs, unless otherwise ordered by the Court.
0. The passage of title and ownership of the Settlement Fund to the
Escrow Agent in accordance with the terms and obligations of the Stipulation is
approved. No Person that is not a Class Member or counsel to the Representative
Plaintiffs shall have any right to any portion of, or in the distribution of,
the Settlement Fund unless otherwise ordered by the Court or otherwise provided
in the Stipulation.
0. All funds held by the Escrow Agent shall be deemed and considered to
be in custodia legis of the Court, and shall remain subject to the jurisdiction
of the Court, until such time as such funds shall be distributed pursuant to the
Stipulation and/or further order(s) of the Court.
0. All papers in support of the settlement, the Plan of Allocation, any
application by counsel for the Representative Plaintiffs for attorneys' fees or
expenses shall be filed with the Court and served seven (7) days prior to the
Settlement Hearing.
0. Neither the Defendants nor the Defendants' counsel shall have any
responsibility for the Plan of Allocation or any application for attorneys' fees
or expenses submitted by Representative Plaintiffs' Counsel, and such matters
will be considered separately from the fairness, justness, reasonableness and
adequacy of the settlement.
0. At or after the Settlement Hearing, the Court shall determine whether
the Plan of Allocation proposed by the Plaintiffs' Settlement Counsel, and any
application for attorneys' fees or expenses shall be approved.
0. All reasonable expenses incurred in identifying and notifying Class
Members, and Samsonite Shareholders, as well as administering the Settlement
Fund, shall be paid as set forth in the Stipulation. In the event the
settlement is not approved by the Court, or otherwise fails to become effective,
neither the Representative Plaintiffs nor any of their
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counsel shall have any obligation to repay any amounts actually and properly
disbursed from the Notice and Administration Fund.
0. Neither the Stipulation, nor any of its terms or provisions, nor any
of the negotiations or proceedings connected with it, shall be construed as an
admission or concession by any or all of the Defendants of the truth of any of
the allegations in the Litigation, or of any liability, fault or wrongdoing of
any kind.
0. The Court reserves the right to adjourn the date of the Settlement
Hearing without further notice to the Members of the Class or the Samsonite
Shareholders, and retains jurisdiction to consider all further applications
arising out of or connected with the proposed settlement. The Court may approve
the settlement, with such modifications as may be agreed to by the Settling
Parties, if appropriate, without further notice to the Class or the Samsonite
Shareholders.
DATED: _____________________ ____________________________________________
THE HONORABLE JOHN L. KANE, JR.
UNITED STATES DISTRICT JUDGE
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Exhibit A-1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
--------------------------------------------------------------------------------
NOTICE OF PENDENCY AND PROPOSED
SETTLEMENT OF CLASS ACTION
EXHIBIT A-1
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<PAGE>
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED THE COMMON STOCK OF
SAMSONITE CORPORATION ("SAMSONITE") OR PURCHASED OR SOLD SAMSONITE
OPTIONS DURING THE PERIOD SEPTEMBER 10, 1996 THROUGH AND INCLUDING
AUGUST 11, 1998 OR OWNED SAMSONITE COMMON STOCK AT THE TIME OF THE
REORGANIZATION PLAN IN JUNE 1998
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE
AFFECTED BY PROCEEDINGS IN THIS LITIGATION. PLEASE NOTE THAT IF YOU ARE A CLASS
MEMBER, YOU MAY BE ENTITLED TO SHARE IN THE PROCEEDS OF THE SETTLEMENT DESCRIBED
IN THIS NOTICE. TO CLAIM YOUR SHARE OF THIS FUND, YOU MUST SUBMIT A VALID PROOF
OF CLAIM POSTMARKED ON OR BEFORE ___________, 2000.
This Notice has been sent to you pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States Court for the District of
Colorado (the "Court"). The purpose of this Notice is to inform you of the
proposed settlement of this class action litigation (the "Litigation") and of
the hearing to be held by the Court to consider the fairness, justness,
reasonableness, and adequacy of the settlement. This Notice describes the
rights you may have in connection with the settlement and what steps you may
take in relation to the settlement and this class action litigation.
The proposed settlement creates a fund in the amount of $24,000,000 and
will include interest that accrues thereon prior to distribution (the
"Settlement Fund"). Based on the Representative Plaintiffs' estimate of the
number of shares or options entitled to participate in the settlement and the
anticipated number of claims to be submitted by Class Members, the average
distribution per share or option would be approximately $1.72 before deduction
of Court-approved fees and expenses. However, your actual recovery from the
Settlement Fund will depend on a number of variables including the number of
claimants, the number of shares or options you purchased or otherwise acquired,
the expense of administering the claims process, and the timing of your
purchases and sales, if any.
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The Representative Plaintiffs and the Defendants do not agree on the
average amount of damages per share that would be recoverable if the
Representative Plaintiffs were to have prevailed on each claim asserted. The
issues on which the parties actually or potentially disagree include: (1) the
appropriate economic model for determining the amount by which the price of
Samsonite common stock or options allegedly was artificially inflated (if at
all) during the Class Period; (2) the amount by which the price of Samsonite
common stock or options allegedly was artificially inflated (if at all) during
the Class Period; (3) the effect of various market forces influencing the
trading price of Samsonite common stock or options at various times during the
Class Period; (4) the extent to which external factors, such as general market
conditions, influenced the trading price of Samsonite common stock or options at
various times during the Class Period; (5) the extent to which the various
matters that the Representative Plaintiffs alleged were materially false or
misleading influenced (if at all) the trading price of Samsonite common stock or
options at various times during the Class Period; (6) the extent to which the
various allegedly adverse material facts that the Representative Plaintiffs
alleged were omitted influenced (if at all) the trading price of Samsonite
common stock or options at various times during the Class Period; and (7)
whether the statements made or facts allegedly omitted were false, material or
otherwise actionable under the federal or state securities laws.
Counsel for the Representative Plaintiffs believe that the proposed
settlement is a good recovery and is in the best interests of the Class.
Because of the risks associated with continuing to litigate and proceeding to
trial, there was a danger that plaintiffs would not have prevailed on any of
their claims, in which case the Class would receive nothing. For example, the
Representative Plaintiffs faced the possibility that all or many of the claims
in the Litigation could have been dismissed in response to motions by the
Defendants. In addition, the amount of damages recoverable by the Class was and
is subject to challenge by the Defendants. Recoverable damages in this
Litigation are limited to losses caused by
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conduct actionable under applicable law and, had the Litigation gone to trial,
the Defendants intended to assert that all or most of the losses of Class
Members were caused by non-actionable market, industry or general economic
factors. The Defendants also would assert that throughout the Class Period the
uncertainties and risks associated with Samsonite's business and financial
condition fully and adequately were disclosed.
Representative Plaintiffs' Counsel have not received any payment for their
services in conducting the Litigation on behalf of the Representative Plaintiffs
and the Members of the Class, nor have they been reimbursed for their out-of-
pocket expenditures. If the settlement is approved by the Court, counsel for
the plaintiffs will apply to the Court for attorneys' fees of one-third of the
settlement proceeds and reimbursement of out-of-pocket expenses not to exceed
$325,000 to be paid from the Settlement Fund. If the amount requested by
counsel is approved by the Court, the average cost per share would be $0.60.
This Notice is not an expression of any opinion by the Court about the
merits of any of the claims or defenses asserted by any party in this Litigation
or the fairness or adequacy of the proposed settlement.
For further information regarding this settlement you may contact: Rick
Nelson, Milberg Weiss Bershad Hynes & Lerach LLP, 600 West Broadway, Suite 1800,
San Diego, California 92101, Telephone: 619/231-1058. Please do not call any
representative of Samsonite or the Court.
. NOTICE OF HEARING ON PROPOSED SETTLEMENT
A settlement hearing will be held on ___________, 2000, at __:__ __.m.,
before the Honorable John L. Kane, Jr., United States District Judge, at the
United States Courthouse, District of Colorado, 1929 Stout Street, Denver,
Colorado (the "Settlement Hearing"). The purpose of the Settlement Hearing will
be to determine: (1) whether the settlement consisting of $24,000,000 in cash
plus accrued interest should be approved as fair, just, reasonable and
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adequate to each of the parties; (2) whether the proposed plan to distribute the
settlement proceeds (the "Plan of Allocation") is fair, just, reasonable, and
adequate; (3) whether the Representative Plaintiffs' Counsel adequately have
represented the Class; (4) whether the application by plaintiffs' counsel for an
award of attorneys' fees and expenses should be approved; and (5) whether the
Litigation should be dismissed with prejudice. The Court may adjourn or continue
the Settlement Hearing without further notice to the Class.
. DEFINITIONS USED IN THIS NOTICE
0. "Defendants" means Samsonite, Carl C. Icahn, Richard Nicolosi, Leon D.
Black, Robert H. Falk, Marc J. Rowan, Apollo Investment Fund, L.P., Lion
Advisors, L.P., Apollo Advisors, L.P., Luc Van Nevel, Thomas R. Sandler, Richard
H. Wiley, R. Theodore Ammon, Mark H. Rachesky, Robert L. Rosen, and Bernard
Attal. The Parties to the Stipulation have acknowledged that Carl C. Icahn is a
"Defendant" solely in the State Court Actions, not the Federal Actions, the
Derivative Action or the Delaware Action. Mr. Icahn's participation in the
Stipulation shall not be deemed a consent to the jurisdiction of the Court for
any purpose other than the implementation and administration of the settlement
reflected in the Stipulation, nor shall such participation be deemed a waiver or
admission with respect to any claim or defense except as otherwise expressly
provided therein.
0. "Related Persons" means Artemis and its affiliates and each and all of
Defendants and each and all of their respective affiliates and each and all of
their respective past or present directors, officers, managers, employees,
general partners, limited partners, members, principals, agents, underwriters,
insurers, co-insurers, reinsurers, shareholders, attorneys, advisors,
accountants, auditors, banks, investment banks, financial advisors, associates,
personal, legal or other representatives, predecessors, successors, parents,
subsidiaries, divisions, joint ventures, assigns, spouses, heirs, related or
affiliated entities, any entity in which a Defendant has a controlling interest,
any members of their respective
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immediate families, or any trust of which any Defendant is the settlor or which
is for the benefit of any Defendant and/or member(s) of his family, and each and
all of their respective executors, successors, assigns and legal
representatives.
0. "Released Class Claims" means all claims (including "Unknown Claims"
as defined herein), demands, rights, liabilities and causes of action of every
nature and description whatsoever, known or unknown, whether or not concealed or
hidden, asserted or that might have been asserted, including, without
limitation, claims for negligence, gross negligence, breach of duty of care
and/or breach of duty of loyalty, fraud, breach of fiduciary duty, or violation
of any state or federal statutes, rules or regulations, by any Representative
Plaintiff or Class Member against any or all of the Defendants and/or any or all
of the Released Persons arising out of, based upon or related to the purchase,
other acquisition or sale of Samsonite common stock and/or the purchase, other
acquisition or sale of Samsonite options during the Class Period by any Class
Member and the facts, transactions, events, occurrences, acts, disclosures,
statements, omissions or failures to act which were or could have been alleged
in the Litigation.
0. "Released Persons" means each and all of the Defendants and each and
all of the Related Persons.
0. "Class" means a class consisting of all Persons (other than those
Persons who timely and validly request exclusion from the Class) who purchased
or otherwise acquired the common stock or purchased or sold options of Samsonite
during the period September 10, 1996 through and including August 11, 1998, or
owned Samsonite common stock at the time of the Reorganization Plan in June
1998. Excluded from the Class are the Defendants and the Related Persons (as
defined above) (the "Excluded Persons"), members of the immediate families of
each of the Excluded Persons, any entity in which any Excluded Person has or had
a controlling interest during the Class Period, directors and officers of
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Samsonite during the Class Period, and the legal representatives, heirs,
successors or assigns of any such Excluded Person.
0. "Unknown Claims" means any and all Released Class Claims or Released
Derivative Claims which any Representative Plaintiff, Class Member or Samsonite
Shareholder does not know or suspect to exist in his, her or its favor at the
time of the release of the Released Persons which, if known by him, her or it,
might have affected his, her or its settlement with and release of any or all of
the Released Persons, or might have affected his, her or its decision not to
object to this settlement or not to exclude himself, herself or itself from the
Class. With respect to any and all Released Class Claims and Released
Derivative Claims, the Settling Parties stipulate and agree that, upon the
Effective Date, the Representative Plaintiffs expressly shall and each of the
Class Members shall be deemed to have, and by operation of the Judgment shall
have, expressly waived the provisions, rights and benefits of California Civil
Code (S)1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Representative Plaintiffs expressly shall have, and each of the Class
Members and Samsonite Shareholders shall be deemed to have, and by operation of
the Judgment shall have, expressly waived any and all provisions, rights and
benefits conferred by any law of any state or territory of the United States or
any other country, or principle of common or civil law, which is similar,
comparable or equivalent to California Civil Code (S)1542. The Representative
Plaintiffs, Class Members and Samsonite Shareholders hereafter may discover
facts in addition to or different from those which he, she or it now knows or
believes to be true with respect to the subject matter of the Released Class
Claims or the Released Derivative Claims, but each Representative Plaintiff
expressly shall and each Class Member and each Samsonite Shareholder, upon the
Effective Date, shall be deemed to have,
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and by operation of the Judgment shall have, fully, finally and forever
compromised, released, resolved, relinquished, discharged and settled any and
all of the Released Class Claims or any and all of the Released Derivative
Claims, known or unknown, suspected or unsuspected, contingent or non-
contingent, whether or not concealed or hidden, which now exist, or heretofore
have existed upon any theory of law or equity now existing or coming into
existence in the future, including, but not limited to, conduct which is
negligent, intentional, with or without malice, or a breach of any duty, law or
rule, without regard to the subsequent discovery or existence of such different
or additional facts. The Representative Plaintiffs acknowledge, and the Class
Members shall be deemed by operation of the Judgment to have acknowledged, that
the foregoing waiver was separately bargained for and a key element of the
settlement of which this release is a part.
. THE LITIGATION
On and after August 28, 1998, actions were filed in the United States
District Court for the District of Colorado (the "Court") as putative securities
class actions on behalf of Persons who purchased or otherwise acquired the
common stock or options of Samsonite.
By order dated December 17, 1998, these actions were consolidated for all
purposes as In re Samsonite Corporation Securities Litigation, Civil Action No.
C-98-K-1878 (the "Federal Actions"). The operative complaint is the Amended
Consolidated Class Action Complaint for Violations of: (1) the Securities
Exchange Act of 1934; (2) the Colorado Securities Act; and (3) Delaware Law,
dated April 28, 2000 (the "Complaint"). The Complaint alleges violations of
(S)(S)10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, the Colorado Securities Act, C.R.S. (S)11-51-501(1)(a)-
(c), (S)(S)11-51-604(5)(b) and 11-51-604(5)(c); Breach of Fiduciary Duty; and
Equitable Fraud.
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On or after March 13, 1998, two actions were filed in the District Court
for the City and County of Denver, Colorado (the "State Court") as putative
class actions on behalf of Persons who purchased or otherwise acquired Samsonite
common stock or options during a defined period of time, entitled Knudson v.
Samsonite Corporation, et al., Case No. 98CV2210, and Krasner v. Samsonite
Corporation, et al., Case No. 98-CV-6511 (collectively, the "State Court
Actions"). The complaints in the State Court Actions allege that the defendants
had committed violations of the Colorado securities laws, (S)(S)11-51-50 and 11-
51-604.
On March 9, 1999, a derivative action entitled Klinger v. Nicolosi, et al.,
No. 99-CV-1305, was filed in the District Court for the City and County of
Denver, Colorado on behalf of Samsonite. This action (the "Derivative Action")
alleges claims for intentional and negligent breach of fiduciary duty,
constructive fraud and unjust enrichment. The Derivative Action was removed to
this Court on April 8, 1999.
On July 1, 1998, a class action entitled Weiss v. Samsonite Corporation, et
al., C.A. No. 16503, was filed in the Court of Chancery of the State of Delaware
on behalf of all owners of Samsonite common stock during the pendency of
Samsonite's self-tender offer (the "Delaware Action"). The Delaware Action
alleges claims for breach of fiduciary duty of disclosure, entire fairness and
breach of fiduciary duty, and equitable fraud. The Delaware Action was
dismissed and the Order of Dismissal was affirmed on appeal and no further
appellate remedy was sought. No class was ever certified in the Delaware
Action. The material allegations of the Delaware Action now have been alleged
in the Complaint.
The Federal Actions, the State Court Actions, and the Derivative Action
hereinafter are referred to collectively as the "Litigation."
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. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT
The Representative Plaintiffs believe that the claims asserted in the
Litigation have merit. However, counsel for the Representative Plaintiffs
recognize and acknowledge the expense and length of continued proceedings
necessary to prosecute the Litigation against the Defendants through trial and
through appeals. Counsel for the Representative Plaintiffs also have taken into
account the uncertain outcome and the risk of any litigation, especially in
complex actions such as the Litigation, as well as the difficulties and delays
inherent in such litigation. Counsel for the Representative Plaintiffs also are
mindful of the inherent problems of proof under and possible defenses to the
violations asserted in the Litigation. Counsel for the Representative Plaintiffs
believe that the settlement set forth in the Stipulation confers substantial
benefits upon the Class and Samsonite. Based on their evaluation, counsel for
the Representative Plaintiffs have determined that the settlement set forth in
the Stipulation is in the best interests of the Representative Plaintiffs, the
Class and Samsonite.
. DEFENDANTS' STATEMENT AND DENIALS OF WRONGDOING AND LIABILITY
The Defendants have denied and continue to deny each and all of the claims
and contentions alleged by the Representative Plaintiffs in the Litigation. The
Defendants expressly have denied and continue to deny all charges of wrongdoing
or liability against them arising out of any of the conduct, statements, acts or
omissions alleged, or that could have been alleged, in the Litigation. The
Defendants also have denied and continue to deny, inter alia, the allegations
that the Representative Plaintiffs, the Class or Samsonite have suffered damage,
that the price of Samsonite securities was artificially inflated by reasons of
alleged misrepresentations, non-disclosures or otherwise, or that the
Representative Plaintiffs, the Class or Samsonite were harmed by the conduct
alleged in the Litigation.
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Nonetheless, the Defendants have concluded that further conduct of the
Litigation would be protracted and expensive, and that it is desirable that the
Litigation be fully and finally settled in the manner and upon the terms and
conditions set forth in the Stipulation. The Defendants also have taken into
account the uncertainty and risks inherent in any litigation, especially in
complex cases like the Litigation. The Defendants, therefore, have determined
that it is desirable and beneficial to them that the Litigation be settled in
the manner and upon the terms and conditions set forth in the Stipulation.
. TERMS OF THE PROPOSED SETTLEMENT
The Defendants solely through Samsonite's insurance carrier have caused to
be paid into an escrow account, pursuant to the terms of the Stipulation of
Settlement dated as of April 28, 2000 (the "Stipulation"), cash in the amount of
$24,000,000 which has been earning and will continue to earn interest for the
benefit of the Class.
A portion of the settlement proceeds will be used for certain
administrative expenses, including costs of printing and mailing this Notice,
the cost of publishing newspaper notices, payment of any taxes assessed against
the Settlement Fund and costs associated with the processing of claims
submitted. In addition, as explained below, a portion of the Settlement Fund
may be awarded by the Court to counsel for Representative Plaintiffs as
attorneys' fees and expenses. The balance of the Settlement Fund (the "Net
Settlement Fund") will be distributed according to the Plan of Allocation
described below to Class Members who submit valid and timely Proof of Claim
forms.
. PLAN OF ALLOCATION
The Net Settlement Fund will be distributed to Class Members who submit
valid, timely Proof of Claim forms ("Authorized Claimants") under the Plan of
Allocation described below. The Plan of Allocation provides that you will be
eligible to participate in
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the distribution of the Settlement Fund only if you have a net loss on all
transactions in Samsonite common stock or options during the Class Period.
To the extent there are sufficient funds in the Net Settlement Fund, each
Authorized Claimant will receive an amount equal to the Authorized Claimant's
claim, as defined below. If, however, the amount in the Net Settlement Fund is
not sufficient to permit payment of the total claim of each Authorized Claimant,
then each Authorized Claimant shall be paid the percentage of the Net Settlement
Fund that each Authorized Claimant's claim bears to the total of the claims of
all Authorized Claimants. Payment in this manner shall be deemed conclusive
against all Authorized Claimants.
The total of all profits shall be subtracted from the total of all losses
from transactions during the Class Period to determine if a Class Member has a
claim. Only if a Class Member had a net loss, after all profits from
transactions in Samsonite stock or options during the Class Period are
subtracted from all losses, will such Class Member be eligible to receive a
distribution from the Net Settlement Fund.
A claim will be calculated as follows:
1. For shares of Samsonite common stock that were purchased on September
30, 1996 through December 1, 1997, and
(a) sold prior to December 2, 1997, the claim per share is $0;
(b) sold from December 2, 1997 through August 11, 1998, the claim per
share is $3.25 per share;
(c) retained at the end of August 11, 1998, the claim per share is
$4.35 per share.
2. For shares of Samsonite common stock that were purchased on December
2, 1997 through August 11, 1998, and
(a) sold prior to August 12, 1998, the claim per share is $0;
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(b) retained at the end of August 11, 1998, the claim per share is
$1.10 per share.
Special Consideration for Shares Purchased Prior to the Class Period
3. For shares purchased prior to the Class Period and held at the time of
the June 1998 "buy-back," the recovery per share is $0.25.
4. For options of Samsonite that were purchased on September 30, 1996
through August 11, 1998, and
(a) expired/disposed of prior to 8/12/98 and/or retained at the end
of 8/11/98, the claim per option is 15% of the difference between the price paid
for the option less any value received upon disposition;
(b) total recovery for options shall not exceed 5% of the Settlement
Fund.
The date of purchase or sale is the "contract" or "trade" date as
distinguished from the "settlement" date. The determination of the price paid
per share and the price received per share, shall be exclusive of all
commissions, taxes, fees and charges.
For Class Members who made multiple purchases or multiple sales during the
Class Period, the earliest subsequent sale shall be matched with the earliest
purchase and chronologically thereafter for purposes of the claim calculations.
The Court has reserved jurisdiction to allow, disallow or adjust the claim
of any Class Member on equitable grounds.
. ORDER CERTIFYING A CLASS FOR PURPOSES OF SETTLEMENT
On ___________, 2000, the Court certified a class, for settlement purposes
only. The Class is defined above.
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. PARTICIPATION IN THE CLASS
If you fall within the definition of the Class, you will remain a Class
Member unless you elect to be excluded from the Class. If you do not request to
be excluded from the Class, you will be bound by any Judgment entered with
respect to the settlement in the Litigation whether or not you file a Proof of
Claim.
If you wish to remain a Class Member, you need do nothing (other than
timely file a Proof of Claim and Release if you wish to participate in the
distribution of the Net Settlement Fund). Your interests will be represented by
plaintiffs' counsel. If you choose, you may enter an appearance individually or
through your own counsel at your own expense.
TO PARTICIPATE IN THE DISTRIBUTION OF THE NET SETTLEMENT FUND, YOU MUST
TIMELY COMPLETE AND RETURN THE PROOF OF CLAIM AND RELEASE FORM THAT ACCOMPANIES
THIS NOTICE. The Proof of Claim and Release must be postmarked on or before
___________, 2000, and delivered to the Claims Administrator at the address
below. Unless the Court orders otherwise, if you do not timely submit a valid
Proof of Claim, you will be barred from receiving any payments from the Net
Settlement Fund, but will in all other respects be bound by the provisions of
the Stipulation and the Judgment.
. EXCLUSION FROM THE CLASS
You may request to be excluded from the Class. To do so, you must mail a
written request stating that you wish to be excluded from the Class to:
Samsonite Securities Litigation
c/o Claims Administrator
Gilardi & Co. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
The request for exclusion must state: (1) your name, address and telephone
number; and (2) all purchases and sales of Samsonite common stock or stock
options made during the
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Class Period, including the dates of purchase or sale, the number of shares of
such securities purchased or sold, and the price paid or received per share or
option. YOUR EXCLUSION REQUEST MUST BE POSTMARKED ON OR BEFORE ____________,
2000. If you submit a valid and timely request for exclusion, you shall have no
rights under the settlement, shall not share in the distribution of the Net
Settlement Fund, and shall not be bound by the Stipulation or the Judgment.
. DISMISSAL AND RELEASES
If the proposed settlement is approved, the Court will enter a Final
Judgment and Order of Dismissal ("Judgment"). The Judgment will dismiss the
Released Class Claims with prejudice as to all Released Persons. Thereafter,
the State Court Actions will be dismissed with prejudice. The Representative
Plaintiffs and the Defendants are, concurrently with the Settlement Hearing,
seeking the Court's approval of a settlement of the Derivative Action and if
such approval is obtained, the Derivative Action will be dismissed with
prejudice.
The Judgment will provide that all Class Members who do not validly and
timely request to be excluded from the Class shall be deemed to have released
and forever discharged all Released Class Claims (to the extent members of the
Class have such claims) against all Released Persons.
. APPLICATION FOR FEES, EXPENSES AND AWARDS
At the Settlement Hearing, counsel for Representative Plaintiffs will
request the Court to award attorneys' fees of up to one-third of the Settlement
Fund, plus reimbursement of the expenses, not to exceed $325,000, which were
advanced in connection with the Litigation, plus interest thereon. Class
Members are not personally liable for any such fees, expenses or compensation.
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To date, Representative Plaintiffs' Counsel have not received any payment
for their services in conducting this Litigation on behalf of Representative
Plaintiffs and the Members of the Class, nor have counsel been reimbursed for
their out-of-pocket expenses. The fee requested by Representative Plaintiffs'
Counsel would compensate counsel for their efforts in achieving the Settlement
Fund for the benefit of the Class, and for their risk in undertaking this
representation on a contingency basis. The fee requested is within the range of
fees awarded to plaintiffs' counsel under similar circumstances in litigation of
this type.
. CONDITIONS FOR SETTLEMENT
The settlement is conditioned upon the occurrence of certain events
described in the Stipulation. Those events include, among other things: (1)
entry of the Judgment by the Court and the State Court, as provided for in the
Stipulation; and (2) expiration of the time to appeal from or alter or amend the
Judgment. If, for any reason, any one of the conditions described in the
Stipulation is not met, the Stipulation might be terminated and, if terminated,
will become null and void, and the parties to the Stipulation will be restored
to their respective positions as of December 16, 1999.
. THE RIGHT TO BE HEARD AT THE HEARING
Any Class Member who has not made a valid and timely request to be excluded
from the Class, and who objects to any aspect of the settlement, the Plan of
Allocation, the adequacy of representation by Representative Plaintiffs'
Counsel, or the application for attorneys' fees, costs and expenses, may appear
and be heard at the Settlement Hearing. Any such Person must submit a written
notice of objection, received on or before __________, 2000, by each of the
following:
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<PAGE>
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
1929 Stout Street
Denver, CO 80294
Co-Lead Counsel for Plaintiffs and the Class
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
KEITH F. PARK
600 West Broadway
Suite 1800
San Diego, CA 92101
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
MATTHEW P. MONTGOMERY
600 West Broadway, Suite 1700
San Diego, CA 92101
DYER DONNELLY
ROBERT J. DYER III
801 East 17th Avenue
Denver, CO 80218
- and -
Attorneys for Defendants
AKIN, GUMP, STRAUSS,
HAUER & FELD, L.L.P.
STEVEN M. PESNER, P.C.
590 Madison Avenue, 19th Floor
New York, NY 10022
Attorneys for Defendants Samsonite Corporation, Richard
R. Nicolosi, Leon D. Black, Robert H. Falk, Marc J.
Rowan, Apollo Investment Fund, L.P., Lion Advisors,
L.P., Apollo Advisors, L.P., Luc Van Nevel, Thomas R.
Sandler, Richard H. Wiley, R. Theodore Ammon, Mark H.
Rachesky, Robert L. Rosen and Bernard Attal
PIPER MARBURY RUDNICK
& WOLFE LLP
THEODORE ALTMAN
1251 Avenue of the Americas
New York, NY 10020-1104
Attorneys for Defendant Carl. C. Icahn
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<PAGE>
The notice of objection must demonstrate the objecting Person's membership in
the Class, including the number of Samsonite shares or stock options purchased
and sold during the Class Period or shares held in June 1998 at the time of the
Reorganization Plan, and contain a statement of the reasons for objection. Only
Members of the Class who have submitted written notices of objection in this
manner will be entitled to be heard at the Settlement Hearing, unless the Court
orders otherwise.
. SPECIAL NOTICE TO NOMINEES
If you hold any Samsonite common stock purchased or otherwise acquired or
Samsonite stock options purchased or sold during the Class Period or shares
held in June 1998 at the time of the Reorganization Plan as nominee for a
beneficial owner, then, within ten (10) days after you receive this Notice, you
must either: (1) send a copy of this Notice and the Proof of Claim by first
class mail to all such Persons; or (2) provide a list of the names and addresses
of such Persons to the Claims Administrator:
Samsonite Securities Litigation
c/o Claims Administrator
Gilardi & Co. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
If you choose to mail the Notice and Proof of Claim yourself, you may
obtain from the Claims Administrator (without cost to you) as many additional
copies of these documents as you will need to complete the mailing.
Regardless of whether you choose to complete the mailing yourself or elect
to have the mailing performed for you, you may obtain reimbursement for or
advancement of reasonable administrative costs actually incurred or expected to
be incurred in connection with forwarding the Notice and Proof of Claim and
which would not have been incurred but for the obligation to forward the Notice
and Proof of Claim, upon submission of appropriate documentation to the Claims
Administrator.
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<PAGE>
. EXAMINATION OF PAPERS
This Notice is a summary and does not describe all of the details of the
Stipulation. For full details of the matters discussed in this Notice, you may
review the Stipulation filed with the Court, which may be inspected during
business hours, at the office of the Clerk of the Court, United States
Courthouse, District of Colorado, 1929 Stout Street, Denver, Colorado 80294.
If you have any questions about the settlement of the Litigation, you may
contact Plaintiffs' Settlement Counsel by writing:
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
KEITH F. PARK
600 West Broadway
Suite 1800
San Diego, CA 92101
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
MATTHEW P. MONTGOMERY
600 West Broadway, Suite 1700
San Diego, CA 92101
DYER DONNELLY
ROBERT J. DYER III
801 East 17th Avenue
Denver, CO 80218
DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE.
DATED: ____________, 2000 BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF COLORADO
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<PAGE>
Exhibit A-2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
________________________________________________________________________________
SUMMARY NOTICE FOR PUBLICATION
OF PROPOSED SETTLEMENT OF CLASS ACTION
EXHIBIT A-2
________________________________________________________________________________
<PAGE>
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED THE COMMON STOCK OF
SAMSONITE CORPORATION ("SAMSONITE") OR PURCHASED OR SOLD SAMSONITE
OPTIONS DURING THE PERIOD SEPTEMBER 10, 1996 THROUGH AND INCLUDING
AUGUST 11, 1998 OR OWNED SAMSONITE COMMON STOCK AT THE TIME OF THE
REORGANIZATION PLAN IN JUNE 1998]
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District
Court for the District of Colorado that a hearing will be held on __________,
2000, at __:__ __.m., before the Honorable John L. Kane, Jr., at the United
States Courthouse, 1929 Stout Street, Denver, Colorado, for the purpose of
determining: (1) whether the proposed settlement of the claims in the Litigation
for the sum of $24,000,000 plus accrued interest should be approved by the Court
as fair, just, reasonable and adequate; (2) whether, thereafter, the Litigation
should be dismissed with prejudice as set forth in the Stipulation of Settlement
dated as of April 28, 2000; (3) whether the Plan of Allocation is fair, just,
reasonable and adequate and therefore should be approved; and (4) whether the
application of plaintiffs' counsel for the payment of attorneys' fees and
reimbursement of expenses incurred in connection with the Litigation should be
approved.
If you purchased the common stock of Samsonite or purchased or sold
Samsonite stock options during the period beginning September 10, 1996 through
and including August 11, 1998, or owned Samsonite common stock at the time of
the Reorganization Plan in June 1998, your rights may be affected by the
settlement of the Litigation. If you have not received a detailed Notice of
Pendency and Proposed Settlement of Class Action and a copy of the Proof of
Claim and Release, you may obtain copies by writing to Samsonite Securities
Litigation, c/o Gilardi & Co. LLC, P.O. Box 990, Corte Madera, CA 94976-0990.
If you are a Class Member, in order to share in the distribution of the Net
Settlement Fund, you must submit a Proof of Claim and Release no later than
___________, 2000, establishing that you are entitled to recovery. You will be
bound by any judgment rendered in the Litigation whether or not you make a
claim.
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<PAGE>
If you desire to be excluded from the Class, you must file a request for
exclusion by __________, 2000, in the manner and form explained in the detailed
Notice referred to above. All members of the Class who have not requested
exclusion from the Class will be bound by any judgment entered in the Litigation
pursuant to the settlement agreement.
Any objection to the settlement must be mailed or delivered such that it is
received by each of the following no later than __________, 2000:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
1929 Stout Street
Denver, CO 80294
Co-Lead Counsel for Plaintiffs and the Class
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
KEITH F. PARK
600 West Broadway
Suite 1800
San Diego, CA 92101
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
MATTHEW P. MONTGOMERY
600 West Broadway, Suite 1700
San Diego, CA 92101
DYER DONNELLY
ROBERT J. DYER III
801 East 17th Avenue
Denver, CO 80218
- and -
Attorneys for Defendants
AKIN, GUMP, STRAUSS,
HAUER & FELD, L.L.P.
STEVEN M. PESNER, P.C.
590 Madison Avenue, 19th Floor
New York, NY 10022
Attorneys for Defendants Samsonite Corporation, Richard R.
Nicolosi, Leon D. Black, Robert H. Falk, Marc J. Rowan,
Apollo Investment Fund, L.P., Lion Advisors, L.P., Apollo
Advisors, L.P., Luc Van Nevel, Thomas R. Sandler, Richard H.
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<PAGE>
Wiley, R. Theodore Ammon, Mark H. Rachesky, Robert L. Rosen
and Bernard Attal
PIPER MARBURY RUDNICK
& WOLFE LLP
THEODORE ALTMAN
1251 Avenue of the Americas
New York, NY 10020-1104
Attorneys for Defendant Carl. C. Icahn
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS
NOTICE.
DATED: ______________, 2000 BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
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<PAGE>
Exhibit A-3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-705
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R. THEODORE AMMON, MARK H. RACHESKY,
ROBERT L. ROSEN and BERNARD ATTAL,
Defendants,
and
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
________________________________________________________________________________
NOTICE OF PENDENCY AND SETTLEMENT
OF DERIVATIVE ACTION
EXHIBIT A-3
________________________________________________________________________________
<PAGE>
TO: ALL HOLDERS OF SAMSONITE CORP. ("SAMSONITE") COMMON STOCK AS OF APRIL 28,
2000:
PLEASE READ THIS NOTICE CAREFULLY,
IT MAY AFFECT YOUR RIGHTS
THIS NOTICE RELATES TO A PROPOSED SETTLEMENT OF A SHAREHOLDERS' DERIVATIVE
ACTION AND CLAIMS ASSERTED THEREIN.
HOLDERS OF SAMSONITE COMMON STOCK AS OF APRIL 28, 2000 ARE ENTITLED TO
OBJECT, IF THEY DESIRE, TO THE SETTLEMENT OF THE DERIVATIVE CLAIMS AS DESCRIBED
HEREIN. IF THE COURT APPROVES THE DERIVATIVE SETTLEMENT, YOU WILL BE BARRED FROM
CONTESTING THE FAIRNESS, REASONABLENESS OR ADEQUACY OF THE PROPOSED SETTLEMENT
AND FROM PURSUING THE SETTLED DERIVATIVE CLAIMS.
IN ADDITION TO THIS NOTICE, YOU MAY RECEIVE A NOTICE OF PENDENCY AND
PROPOSED SETTLEMENT OF CLASS ACTION WHICH RELATES TO THE PROPOSED SETTLEMENT OF
A CLASS ACTION. IF YOU PURCHASED OR OTHERWISE ACQUIRED SAMSONITE COMMON STOCK
OR PURCHASED OR SOLD SAMSONITE OPTIONS DURING THE PERIOD FROM SEPTEMBER 10, 1996
THROUGH AUGUST 11, 1998 OR HELD SAMSONITE COMMON STOCK AT THE TIME OF THE
REORGANIZATION PLAN IN JUNE 1998, YOUR RIGHTS CONCERNING THE CLASS SETTLEMENT
ARE DESCRIBED IN THE CLASS NOTICE.
This Notice is given pursuant to an Order of the United States District
Court for the District of Colorado (the "Court"). The purpose of the Notice is
to advise you that the above-entitled action now pending in the Court and that
the parties thereto have reached a settlement (the "Settlement") which would
fully, finally and forever resolve this action (the "Derivative Action") as
between the Representative Plaintiffs and the Defendants and their Related
Persons, as defined herein, on the terms and conditions summarized in this
Notice.
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<PAGE>
This Notice is not intended to be and should not be construed as an
expression of any opinion by the Court with respect to the truth of the
allegations of the claims in the Litigation or the merits of the claims or
defenses asserted. This Notice is merely to advise you of the pendency and
proposed settlement of the Derivative Action and of your rights thereunder.
. THE LITIGATION
A. The Derivative Action
On March 9, 1998, the Derivative Action (entitled Klinger v. Nicolosi, et
al., No. 99-CV-1305) was filed in the District Court, City and County of Denver,
Colorado on behalf of Samsonite. The Derivative Action alleges claims for
intentional and negligent breach of fiduciary duty, constructive fraud and
unjust enrichment. The Derivative Action was removed to this Court on April 8,
1999.
A. The Class Actions
On and after August 28, 1998, actions were filed in the United States
District Court for the District of Colorado as putative securities class actions
on behalf of Persons who purchased or otherwise acquired the common stock or
options of Samsonite.
By order dated December 17, 1998, these actions were consolidated for all
purposes as In re Samsonite Corporation Securities Litigation, Civil Action No.
C-98-K-1878 (the "Federal Actions"). The operative complaint is the Amended
Consolidated Class Action Complaint for Violations of: (1) the Securities
Exchange Act of 1934; (2) the Colorado Securities Act; and (3) Delaware Law,
dated April 28, 2000 (the "Complaint"). The Complaint alleges violations of
(S)(S)10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, the Colorado Securities Act, C.R.S. (S)11-51-501(1)(a)-
(c), (S)(S)11-51-604(5)(b) and 11-51-604(5)(c); Breach of Fiduciary Duty; and
Equitable Fraud.
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<PAGE>
On or after March 13, 1998, two actions were filed in the District Court
for the City and County of Denver, Colorado as putative class actions on behalf
of Persons who purchased or otherwise acquired Samsonite common stock or options
during a defined period of time, entitled Knudson v. Samsonite Corporation, et
al., Case No. 98CV2210, and Krasner v. Samsonite Corporation, et al., Case No.
98-CV-6911 (collectively, the "State Court Actions"). The complaints in the
State Court Actions allege that the defendants had committed violations of the
Colorado securities laws, (S)(S)11-51-501 and 11-51-604.
On July 1, 1998, a class action entitled Weiss v. Samsonite Corporation, et
al., C.A. No. 16503, was filed in the Court of Chancery of the State of Delaware
on behalf of all owners of Samsonite common stock during the pendency of
Samsonite's self-tender offer (the "Delaware Action"). The Delaware Action
alleges claims for breach of fiduciary duty of disclosure, entire fairness and
breach of fiduciary duty, and equitable fraud. The Delaware Action was
dismissed and the Order of Dismissal was affirmed on appeal and no further
appellate remedy was sought. No class was ever certified in the Delaware
Action. The material allegations of the Delaware Action now have been alleged
in the Complaint.
The Federal Actions, the State Court Actions and the Derivative Action
hereinafter are referred to collectively as the "Litigation."
. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT
The Representative Plaintiffs believe that the claims asserted in the
Derivative Action have merit. However, counsel for the Representative
Plaintiffs recognize and acknowledge the expense and length of continued
proceedings necessary to prosecute the Derivative Action against the Defendants
through trial and through appeals. Counsel for the Representative Plaintiffs
also have taken into account the uncertain outcome and the risk of any
litigation, especially in complex actions such as the Derivative Action, as well
as the difficulties and delays inherent in such litigation. Counsel for the
Representative Plaintiffs
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<PAGE>
also are mindful of the inherent problems of proof under and possible defenses
to the violations asserted in the Derivative Action. Counsel for the
Representative Plaintiffs believe that the Settlement set forth in the
Stipulation of Settlement dated as of April 28, 2000 (the "Stipulation") confers
substantial benefits upon Samsonite. Based on their evaluation, counsel for the
Representative Plaintiffs have determined that the Settlement set forth in the
Stipulation is in the best interests of the Representative Plaintiffs, Samsonite
and the Samsonite Shareholders.
. DEFENDANTS' STATEMENT AND DENIALS OF WRONGDOING AND LIABILITY
The Defendants have denied and continue to deny each and all of the claims
and contentions alleged by the Representative Plaintiffs in the Derivative
Action. The Defendants expressly have denied and continue to deny all charges
of wrongdoing or liability against them arising out of any of the conduct,
statements, acts or omissions alleged, or that could have been alleged, in the
Derivative Action. The Defendants also have denied and continue to deny, inter
alia, the allegations that the Representative Plaintiffs or Samsonite
Shareholders have suffered damage, that the price of Samsonite securities
artificially was inflated by reasons of alleged misrepresentations, non-
disclosures or otherwise, or that the Representative Plaintiffs or Samsonite or
its stockholders were harmed by the conduct alleged in the Derivative Action.
The Defendants further have asserted that at all relevant times, they acted in
good faith, and in a manner they reasonably believed to be in the best interests
of Samsonite and the Samsonite Shareholders.
Nonetheless, the Defendants have concluded that further conduct of the
Derivative Action would be protracted and expensive, and that it is desirable
that the Derivative Action be fully and finally settled in the manner and upon
the terms and conditions set forth in the Stipulation. The Defendants also have
taken into account the uncertainty and risks inherent in any litigation,
especially in complex cases like the Derivative Action. The Defendants
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<PAGE>
have, therefore, determined that it is desirable and beneficial to them that the
Derivative Action be settled in the manner and upon the terms and conditions set
forth in the Stipulation.
. DEFINITIONS
As used in this Stipulation, the following terms have the meanings
specified below:
1. "Defendants" means Samsonite, Carl C. Icahn, Richard Nicolosi, Leon D.
Black, Robert H. Falk, Marc J. Rowan, Apollo Investment Fund, L.P., Lion
Advisors, L.P., Apollo Advisors, L.P., Luc Van Nevel, Thomas R. Sandler, Richard
H. Wiley, R. Theodore Ammon, Mark H. Rachesky, Robert L. Rosen and Bernard
Attal. The parties to this Stipulation acknowledge that Carl C. Icahn is a
"Defendant" solely in the State Court Actions, not the Federal Actions, the
Derivative Action or the Delaware Action. Mr. Icahn's participation in the
Stipulation shall not be deemed a consent to the jurisdiction of the Court for
any purpose other than the implementation and administration of the Settlement
reflected in the Stipulation, nor shall such participation be deemed a waiver or
admission with respect to any claim or defense except as otherwise expressly
provided therein.
2. "Samsonite Shareholders" means all shareholders of Samsonite as of
April 28, 2000.
3. "Judgment" means the judgment to be rendered by the Court.
4. "Person" means an individual, corporation, limited liability
corporation, professional corporation, limited liability partnership,
partnership, limited partnership, association, joint stock company, estate,
legal representative, trust, unincorporated association, government or any
political subdivision or agency thereof, and any business or legal entity and
their respective spouses, heirs, predecessors, successors, representatives, or
assignees.
5. "Related Persons" means Artemis and its affiliates and each and all of
Defendants and each and all of their respective past or present directors,
officers, managers,
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<PAGE>
employees, general partners, limited partners, members, principals, agents,
underwriters, insurers, co-insurers, reinsurers, shareholders, attorneys,
advisors, accountants, auditors, banks, investment banks, financial advisors,
associates, personal, legal or other representatives, predecessors, successors,
parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs,
related or affiliated entities, any entity in which a Defendant has a
controlling interest, any members of their respective immediate families, or any
trust of which any Defendant is the settlor or which is for the benefit of any
Defendant and/or member(s) of his family, and each of their respective
executors, successors, assigns and legal representatives.
6. "Released Derivative Claims" means any and all claims (including
"Unknown Claims"), demands, rights, liabilities and causes of action of every
nature and description whatsoever, known or unknown whether or not concealed or
hidden, asserted or that might have been asserted, including without limitation,
claims for negligence, gross negligence, breach of duty of care and/or breach of
duty of loyalty, fraud, breach of fiduciary duty, or violations of any state or
federal statutes, rules or regulations that have been or could have been
asserted by Samsonite or Samsonite Shareholders on behalf of Samsonite, or any
of them, against any or all of the Released Persons in the Derivative Action
arising out of, based upon or related to the facts, transactions, events,
occurrences, acts, disclosures, statements, omissions or failures to act which
were alleged or could have been alleged in the Litigation.
7. "Released Persons" means each and all of the Defendants and each and
all of the Related Persons.
8. "Representative Plaintiffs" means each of the plaintiffs who filed a
complaint in the Derivative Action.
0. "Settling Parties" means, collectively, each of the Defendants and the
Representative Plaintiffs on behalf of themselves and derivatively on behalf of
Samsonite.
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<PAGE>
0. "Unknown Claims" means any and all Released Class Claims or Released
Derivative Claims which any Representative Plaintiff, Class Member or Samsonite
Shareholder does not know or suspect to exist in his, her or its favor at the
time of the release of the Released Persons which, if known by him, her or it,
might have affected his, her or its settlement with and release of any or all of
the Released Persons, or might have affected his, her or its decision not to
object to this settlement or not to exclude himself, herself or itself from the
Class. With respect to any and all Released Derivative Claims, the Settling
Parties stipulate and agree that, upon the Effective Date, the Representative
Plaintiffs expressly shall, and each of the Class Members and Samsonite
Shareholders shall be deemed to have, and by operation of the Judgment shall
have, expressly waived the provisions, rights and benefits of California Civil
Code (S)1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
The Representative Plaintiffs expressly shall have, and each of the Class
Members and Samsonite Shareholders shall be deemed to have, and by operation of
the Judgment shall have, expressly waived any and all provisions, rights and
benefits conferred by any law of any state or territory of the United States, or
any other country, or principle of common or civil law, which is similar,
comparable or equivalent to California Civil Code (S)1542. The Representative
Plaintiffs, Class Members and Samsonite Shareholders hereafter may discover
facts in addition to or different from those which he, she or it now knows or
believes to be true with respect to the subject matter of any or all of the
Released Derivative Claims, but each Representative Plaintiff expressly shall
and each Class Member and each Samsonite Shareholder, upon the Effective Date,
shall be deemed to have, and by operation of the Judgment shall have, fully,
finally and forever compromised, released, resolved, relinquished, discharged
and settled and any and all of the Released Derivative Claims,
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<PAGE>
known or unknown, suspected or unsuspected, contingent or non-contingent,
whether or not concealed or hidden, which now exist, or heretofore have existed
upon any theory of law or equity now existing or coming into existence in the
future, including, but not limited to, conduct which is negligent, intentional,
with or without malice, or a breach of any duty, law or rule, without regard to
the subsequent discovery or existence of such different or additional facts. The
Representative Plaintiffs acknowledge, and the Class Members and Samsonite
Shareholders, shall be deemed by operation of the Judgment to have acknowledged,
that the foregoing waiver was separately bargained for and a key element of the
Settlement of which this release is a part.
. THE PROPOSED SETTLEMENT
Counsel for the Representative Plaintiffs have investigated the facts and
the applicable law regarding the claims of the Persons on whose behalf they are
acting and the potential defenses thereto. Based on this investigation, the
Representative Plaintiffs have agreed with Samsonite that it is in the best
interests of Samsonite and its shareholders to settle the Derivative Action on
the following terms.
0. Corporate Governance/Board of Directors
0.0 Upon Court approval of the settlement, Samsonite will adopt the
following Corporate Governance Policies, each to remain in effect for five years
from the date of Court approval of the settlement.
(a) At least two-thirds of the members of the Board of Directors
shall be "independent," as defined in the Stipulation.
(a) The Board of Directors shall hold an executive session at least
once each year at which employee directors are not present.
(a) The Compensation Committee and the Audit Committee of the Board
of Directors shall each be composed entirely of independent directors.
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(a) The Compensation Committee shall set annual and long-term
performance goals for the Chairman of the Board and the Chief Executive Officer
and evaluate his performance against such goals and the performance of
Samsonite's peer companies, and the Board of Directors shall adopt a resolution,
setting forth specific compensation principles governing the compensation of
Samsonite's officers and directors, as outlined in the Stipulation.
(a) Nomination of directors and the composition of the Executive
Committee shall be governed by the Stockholders Agreement dated July 13, 1999.
If during the five year period of these therapeutics the Stockholders Agreement
is terminated or amended as specified in the Stipulation, the Board of Directors
will create a Nominating Committee composed entirely of independent directors.
(a) The Board of Directors' Committees shall have standing
authorization, on their own decision, to retain legal and/or other advisers of
their choice, which advisers shall report directly to the Committees.
(a) The Board of Directors shall adopt a resolution creating the
Corporate Governance Committee, which Committee shall be comprised entirely of
independent directors. This new Corporate Governance Committee will perform the
functions specified in the Corporate Governance Committee Guidelines set forth
in the Stipulation.
0. Insider Trading Policy
0.0 Samsonite has adopted insider trading controls governing the trading
in Samsonite securities by directors, officers, all managerial employees of
Samsonite, and all other employees who have or may have access to material non-
public information about Samsonite, including Samsonite's financial results.
Samsonite shall maintain these insider trading controls and may amend them in
the future to comply with the law.
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<PAGE>
0. Corporate Transactions
0.0 The approval by Samsonite of any future significant recapitalization
or acquisitions will require the review and approval by an independent committee
of Samsonite formed to investigate or evaluate transactions or strategies
involving a potential recapitalization, merger or acquisition of or by
Samsonite. Such independent committee may, at its discretion, obtain an
independent fairness opinion prior to recommending the approval of any such
transaction to the Board of Directors.
0. Internal Controls
0.0 The independent Audit Committee will meet on a quarterly basis to
review Samsonite's financial statements prior to public release and will meet at
least annually to review Samsonite's revenue recognition and reserve policies
and the implementation of these policies by the management of Samsonite. The
Audit Committee will bring to the Board of Directors' attention any material
deviation from these policies by management.
If the proposed settlement is approved by the Court, the Court will enter a
judgment which will dismiss the Derivative Action as against the Defendants with
prejudice, and all Samsonite Shareholders (in their capacity as shareholders
only) and Samsonite (as nominal defendant) shall be barred and enjoined from
asserting any Released Derivative Claims (as defined above) against any of the
Released Persons and each and all Samsonite Shareholders and Samsonite shall
conclusively be deemed to have released any and all such Released Derivative
Claims as against all of the Released Persons.
0. Attorneys' Fees and Expenses
0.0 If the proposed settlement is approved by the Court, counsel to the
Representative Plaintiffs will share in any fee and expense award made by the
Court in the settlement of the Federal Actions. Any such amount will be paid
from the amount contributed on behalf of Samsonite by its insurance carrier in
settlement of the Federal Actions and the State Court Actions and will not be
paid by Samsonite.
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. NOTICE TO BANKS, BROKERS, AND OTHER NOMINEES
Banks, brokerage firms, institutions, and other persons who are nominees
who held the common stock of Samsonite for the beneficial interest of other
persons on April 28, 2000 are requested within ten (10) days of receipt of the
Notice, to (1) provide Plaintiffs' Settlement Counsel with the names and
addresses of such beneficial purchasers, or (2) forward a copy of the Notice to
each such beneficial purchaser and provide Plaintiffs' Settlement Counsel with
written confirmation that the Notice has been so forwarded. Your reasonable
costs and expenses of complying with this provision will be paid upon submission
of appropriate documentation to Plaintiffs' Settlement Counsel. Additional
copies of the Notice may be obtained from Plaintiffs' Settlement Counsel for
forwarding to such beneficial owners. All such correspondence should be
addressed as follows:
Samsonite Derivative Litigation
c/o Gilardi & Co. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
. THE HEARING
A hearing (the "Settlement Hearing") will be held before the Honorable John
L. Kane, Jr., United States District Judge, on ________ 2000, at __:__ __.m., at
the United States Courthouse, United States District Court for the District of
Colorado, 1929 Stout Street, Denver, Colorado, for the purpose of determining
whether the proposed settlement is fair, just, reasonable and adequate and
whether it should be approved by the Court and whether a judgment should be
entered dismissing the Derivative Action with prejudice as against the
Defendants. The Settlement Hearing may be continued or adjourned from time to
time by the Court at the Settlement Hearing or any continued or adjourned
session thereof without further notice.
Any shareholder of Samsonite as of April 28, 2000 may appear at the
Settlement Hearing to show cause why the proposed settlement should not be
approved or why a
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<PAGE>
judgment should or should not be entered thereon; provided, however, that no
such Person shall be heard, unless his, her or its objection or opposition
including the basis therefore is made in writing, together with proof of current
ownership of Samsonite common stock, and is received on or before __________,
2000, by each of the following:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
1929 Stout Street
Denver, CO 80294
Co-Lead Counsel for Plaintiffs and the Class
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
KEITH F. PARK
600 West Broadway
Suite 1800
San Diego, CA 92101
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
MATTHEW P. MONTGOMERY
600 West Broadway, Suite 1700
San Diego, CA 92101
DYER DONNELLY
ROBERT J. DYER III
801 East 17th Avenue
Denver, CO 80218
- and -
Attorneys for Defendants
AKIN, GUMP, STRAUSS,
HAUER & FELD
STEVEN M. PESNER, P.C.
590 Madison Avenue, 19th Floor
New York, NY 10022
Attorneys for Defendants Samsonite Corporation, Richard
R. Nicolosi, Leon D. Black, Robert H. Falk, Marc J.
Rowan, Apollo Investment Fund, L.P., Lion Advisors,
L.P., Apollo Advisors, L.P., Luc Van Nevel, Thomas R.
Sandler, Richard H. Wiley, R. Theodore Ammon, Mark H.
Rachesky, Robert L. Rosen and Bernard Attal
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<PAGE>
PIPER MARBURY RUDNICK
& WOLFE LLP
THEODORE ALTMAN
1251 Avenue of the Americas
New York, NY 10020-1104
Attorneys for Defendant Carl. C. Icahn
Unless otherwise ordered by the Court, any shareholder of Samsonite who does not
make his, her or its objection or opposition in the manner provided shall be
deemed to have waived all objections and opposition to the fairness, justness,
reasonableness and adequacy of the proposed settlement.
. EXAMINATION OF PAPERS AND INQUIRIES
This Notice contains only a summary of the terms of the proposed
settlement. For a more detailed statement of the matters involved in the
Litigation, reference is made to the pleadings, to the Stipulation of
Settlement and to other papers filed in the Litigation which may be inspected at
the Office of the Clerk of the Court, United States District Court for the
District of Colorado, 1929 Stout Street, Denver, Colorado, during business hours
of each business day.
Inquiries regarding this action should be addressed as follows:
Samsonite Derivative Litigation
c/o Gilardi & Co. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
DO NOT CONTACT THE COURT REGARDING THIS NOTICE.
DATED:_________, 2000 BY ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
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<PAGE>
Exhibit A-4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 99-K-705
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R. THEODORE AMMON, MARK H. RACHESKY,
ROBERT L. ROSEN and BERNARD ATTAL,
Defendants,
and
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
--------------------------------------------------------------------------------
SUMMARY NOTICE FOR PUBLICATION OF PROPOSED
SETTLEMENT OF DERIVATIVE ACTION
EXHIBIT A-4
--------------------------------------------------------------------------------
<PAGE>
TO: ALL HOLDERS OF SAMSONITE CORP. ("SAMSONITE") COMMON STOCK AS OF APRIL 28,
2000
YOU ARE HEREBY NOTIFIED that the parties to the above derivative action
have entered into a Stipulation of Settlement dated as of ___________ (the
"Stipulation") to resolve the issues raised by the derivative action.
PLEASE BE FURTHER ADVISED that pursuant to an Order of the United States
District Court for the District of Colorado, a hearing will be held on
____________, 2000, at __:__ __.m., before the Honorable John L. Kane, Jr., at
the United States Courthouse, 1929 Stout Street, Denver, Colorado, for the
purpose of determining: (1) whether the proposed settlement of the derivative
action as set forth in the Stipulation on file with the Court should be approved
by the Court as fair, just, reasonable and adequate to Samsonite and its common
stockholders; and (2) whether the derivative action should be dismissed with
prejudice pursuant to the terms of the Stipulation. If you are a shareholder of
Samsonite, your rights may be affected by the settlement of this action.
If you owned Samsonite common stock as of April 28, 2000, and have not
received a Notice of Pendency and Settlement of Derivative Action, you may
obtain a copy by contacting: Samsonite Derivative Litigation, c/o Gilardi & Co.
LLC, P.O. Box 990, Corte Madera, CA 94976-0990.
Plaintiffs' Settlement Counsel are:
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
KEITH F. PARK
600 West Broadway, Suite 1800
San Diego, CA 92101
BARRACK, RODOS & BACINE
STEPHEN R. BASSER
600 West Broadway, Suite 1700
San Diego, CA 92101
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<PAGE>
DYER DONNELLY
ROBERT J. DYER III
801 East 17th Avenue
Denver, CO 80218
PLEASE DO NOT CONTACT THE COURT OF THE CLERK'S OFFICE
DATED: ___________, 2000 BY ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
-2-
<PAGE>
Exhibit A-5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
--------------------------------------------------------------------------------
PROOF OF CLAIM AND RELEASE
EXHIBIT A-5
--------------------------------------------------------------------------------
<PAGE>
. GENERAL INSTRUCTIONS
0. To recover as a member of the Class based on your claims in the action
entitled In re Samsonite Corp. Sec. Litig., Civil Action No. C-98-R-1878 (the
"Litigation"), you must complete and, on page ___ hereof, sign this Proof of
Claim and Release. If you fail to file a properly addressed (as set forth in
paragraph 3 below) Proof of Claim and Release, your claim may be rejected and
you may be precluded from any recovery from the Settlement Fund created in
connection with the proposed settlement of the Litigation.
0. Submission of this Proof of Claim and Release, however, does not
assure that you will share in the proceeds of settlement in the Litigation.
0. YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM AND RELEASE
POSTMARKED ON OR BEFORE __________, 2000, ADDRESSED AS FOLLOWS:
Samsonite Securities Litigation
c/o Claims Administrator
Gilardi & Co. LLC
P.O. Box 990
Corte Madera, CA 94976-0990
If you are NOT a Member of the Class (as defined in the Notice of Pendency and
Proposed Settlement of Class Action) DO NOT submit a Proof of Claim and Release
form.
0. If you are a Member of the Class and you do not timely request
exclusion, you are bound by the terms of any judgment entered in the Litigation,
WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM AND RELEASE.
. DEFINITIONS
0. As used in this Stipulation, the following terms have the meanings
specified below:
0. "Defendants" means Samsonite, Carl C. Icahn, Richard Nicolosi, Leon D.
Black, Robert H. Falk, Marc J. Rowan, Apollo Investment Fund, L.P., Lion
Advisors, L.P., Apollo Advisors, L.P., Luc Van Nevel, Thomas R. Sandler, Richard
H. Wiley, R. Theodore
-1-
<PAGE>
Ammon, Mark H. Rachesky, Robert L. Rosen and Bernard Attal. The parties to the
Stipulation have acknowledged that Carl C. Icahn is a "Defendant" solely in the
State Court Actions, not the Federal Actions, the Derivative Action or the
Delaware Action. Mr. Icahn's participation in the Stipulation shall not be
deemed a consent to the jurisdiction of the Court for any purpose other than the
implementation and administration of the settlement reflected therein, nor shall
such participation be deemed a waiver or admission with respect to any claim or
defense except as otherwise expressly provided therein.
0. "Related Persons" means Artemis and its affiliates and each and all of
the Defendants and and each and all of their respective affiliates and each and
all of their respective past or present directors, officers, managers,
employees, general partners, limited partners, members, principals, agents,
underwriters, insurers, co-insurers, reinsurers, shareholders, attorneys,
advisors, accountants, auditors, banks, investment banks, financial advisors,
associates, personal, legal or other representatives, predecessors, successors,
parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs,
related or affiliated entities, any entity in which a Defendant has a
controlling interest, any members of their respective immediate families, or any
trust of which any Defendant is the settlor or which is for the benefit of any
Defendant and/or member(s) of his family, and each and all of their respective
executors, successors, assigns and legal representatives.
0. "Released Persons" means each and all of the Defendants and each and
all of the Related Persons.
. CLAIMANT IDENTIFICATION
0. If you purchased or otherwise acquired Samsonite common stock or
purchased or sold options and held the certificate(s) in your name, you are the
beneficial purchaser as well as the record purchaser. If, however, you
purchased Samsonite common stock or purchased or sold Samsonite stock options
and the certificate(s) were registered in the name
-2-
<PAGE>
of a third party, such as a nominee or brokerage firm, you are the beneficial
purchaser and the third party is the record purchaser.
0. Use Part I of this form entitled "Claimant Identification" to identify
each purchaser of record ("nominee"), if different from the beneficial purchaser
of Samsonite stock or options which forms the basis of this claim. THIS CLAIM
MUST BE FILED BY THE ACTUAL BENEFICIAL PURCHASER OR PURCHASERS, OR THE LEGAL
REPRESENTATIVE OF SUCH PURCHASER OR PURCHASERS, OF THE SAMSONITE STOCK OR
OPTIONS UPON WHICH THIS CLAIM IS BASED.
0. All joint purchasers must sign this claim. Executors, administrators,
guardians, conservators and trustees must complete and sign this claim on behalf
of Persons represented by them and their authority must accompany this claim and
their titles or capacities must be stated. The Social Security (or taxpayer
identification) number and telephone number of the beneficial owner may be used
in verifying the claim. Failure to provide the foregoing information could
delay verification of your claim or result in rejection of the claim.
. CLAIM FORM
0. Use Part II of this form entitled "Schedule of Transactions in
Samsonite Common Stock or Options" to supply all required details of your
transaction(s) in Samsonite stock or options. If you need more space or
additional schedules, attach separate sheets giving all of the required
information in substantially the same form. Sign and print or type your name on
each additional sheet.
0. On the schedules, provide all of the requested information with
respect to ALL of your purchases or other acquisitions and ALL of your sales of
Samsonite stock or purchases or sales of Samsonite stock options which took
place at any time beginning September 10, 1996 through and including August 11,
1998, or shares of Samsonite stock held at the time of the Reorganization Plan
in June 1998 (the "Class Period"), whether such transactions
-3-
<PAGE>
resulted in a profit or a loss. Failure to report all such transactions may
result in the rejection of your claim.
0. List each transaction in the Class Period separately and in
chronological order, by trade date, beginning with the earliest. You must
accurately provide the month, day and year of each transaction you list.
0. The date of covering a "short sale" is deemed to be the date of
purchase of Samsonite stock. The date of a "short sale" is deemed to be the
date of sale of Samsonite stock.
0. Broker confirmations or other documentation of your transactions in
Samsonite stock or options should be attached to your claim. Failure to provide
this documentation could delay verification of your claim or result in rejection
of your claim.
-4-
<PAGE>
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
In re Samsonite Sec. Litig.
---------------------------
Civil Action No. C-98-12-1878
PROOF OF CLAIM
Must be Postmarked No Later Than:
___________, 2000
Please Type or Print
PART I: CLAIMANT IDENTIFICATION
--------------------------------------------------------------------------------
Beneficial Owner's Name (First, Middle, Last)
--------------------------------------------------------------------------------
Street Address
--------------------------------------- ------------------------------------
City State Zip Code
--------------------------------------- ------------------------------------
Foreign Province Foreign Country
--------------------------------------- --------------- Individual
Social Security Number or
Taxpayer Identification Number --------------- Corporation/Other
(work)
--------------- ---------------------------------
Area Code Telephone Number
(home)
--------------- ---------------------------------
Area Code Telephone Number
--------------------------------------------------------------------------------
Record Owner's Name (if different from beneficial owner listed above)
-5-
<PAGE>
PART II: SCHEDULE OF TRANSACTIONS IN SAMSONITE COMMON STOCK OR STOCK OPTIONS
A. Number of shares of Samsonite common stock or options held at the
beginning of trading on September 10, 1996: ________
B. Purchases or other acquisitions (September 10, 1996 - August 11, 1998,
inclusive) of Samsonite common stock or options
Trade Date No. of Shares or Options Total Purchase Price
------------------------ --------------------
Mo. Day Year Purchased
---------------- ---------
1. _____________________ 1.____________________ 1._____________________
2. _____________________ 2.____________________ 2._____________________
3. _____________________ 3.____________________ 3._____________________
IMPORTANT: Identify by number listed above all purchases in which you
covered a "short sale":
C. Number of shares of Samsonite common stock held on June 24, 1998:
________
D. Sales (September 10, 1996 - August 11, 1998, inclusive) of Samsonite
common stock or stock options
Trade Date No. of Options and/or Total Sales Price
Mo. Day Year Shares Sold -----------------
---------------- ---------------------
1. _____________________ 1.____________________ 1._____________________
2. _____________________ 2.____________________ 2._____________________
3. _____________________ 3.____________________ 3._____________________
E. Number of shares of Samsonite common stock or options held at close of
trading on August 11, 1998: ________________
If you require additional space, attach extra schedules in the same format as
above. Sign and print your name on each additional page.
YOU MUST READ AND SIGN THE RELEASE ON PAGE ____.
-6-
<PAGE>
. SUBMISSION TO JURISDICTION OF COURT AND ACKNOWLEDGMENTS
I submit this Proof of Claim and Release under the terms of the Stipulation
of Settlement described in the Notice. I also submit to the jurisdiction of the
United States District Court for the District of Colorado with respect to my
claim as a Class Member and for purposes of enforcing the release set forth
herein. I further acknowledge that I am bound by and subject to the terms of
any judgment that may be entered in the Litigation. I agree to furnish
additional information to the Plaintiffs' Settlement Counsel to support this
claim if required to do so. I have not submitted any other claim covering the
same purchases or sales of Samsonite common stock or options during the Class
Period and know of no other Person having done so on my behalf.
. RELEASE
0. I hereby acknowledge full and complete satisfaction of, and do hereby
fully, finally and forever settle, release and discharge from the Released Class
Claims each and all of the Defendants and each and all of their Related Persons.
0. "Released Class Claims" means all claims (including "Unknown Claims"
as defined below), demands, rights, liabilities and causes of action of every
nature and description whatsoever, known or unknown, whether or not concealed or
hidden, asserted or that might have been asserted, including, without
limitation, claims for negligence, gross negligence, breach of duty of care
and/or breach of duty of loyalty, fraud, breach of fiduciary duty, or violation
of any state or federal statutes, rules or regulations, by any Representative
Plaintiff or Class Member against any or all of the Released Persons arising out
of, based upon or related to both the purchase or other acquisition or sale of
Samsonite common stock and/or the purchase or the acquisition or sale of
Samsonite options during the Class Period by any Class Member and the facts,
transactions, events, occurrences, acts, disclosures, statements, omissions or
failures to act which were or could have been alleged in the Litigation.
-7-
<PAGE>
0. "Unknown Claims" means any and all Released Class Claims or Released
Derivative Claims which any Representative Plaintiff or Class Member does not
know or suspect to exist in his, her or its favor at the time of the release of
the Released Persons which, if known by him, her or it, might have affected his,
her or its settlement with and release of any or all of the Released Persons, or
might have affected his, her or its decision not to object to this settlement or
not to exclude himself, herself or itself from the Class. With respect to any
and all Released Class Claims, the Settling Parties have stipulated and agreed
that, upon the Effective Date, the Representative Plaintiffs expressly shall and
each of the Class Members shall be deemed to have, and by operation of the
Judgment shall have, expressly waived the provisions, rights and benefits of
California Civil Code (S)1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Representative Plaintiffs expressly shall and each of the Class Members
shall be deemed to have, and by operation of the Judgment shall have, expressly
waived any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or any other country, or principle of
common law, which is similar, comparable or equivalent to California Civil Code
(S)1542. The Representative Plaintiffs and Class Members hereafter may discover
facts in addition to or different from those which he, she or it now knows or
believes to be true with respect to the subject matter of any or all of the
Released Class Claims, but each Representative Plaintiff expressly shall and
each Class Member, upon the Effective Date, shall be deemed to have, and by
operation of the Judgment shall have, fully, finally, and forever compromised,
settled, released, resolved, relinquished, discharged and settled any and all of
the Released Class Claims, known or unknown, suspected or unsuspected,
contingent or non-contingent, whether or not concealed or hidden, which now
-8-
<PAGE>
exist, or heretofore have existed upon any theory of law or equity now existing
or coming into existence in the future, including, but not limited to, conduct
which is negligent, intentional, with or without malice, or a breach of any
duty, law or rule, without regard to the subsequent discovery or existence of
such different or additional facts. The Representative Plaintiffs acknowledge,
and the Class Members shall be deemed by operation of the Judgment to have
acknowledged, that the foregoing waiver was separately bargained for and a key
element of the settlement of which this release is a part.
0. This release shall be of no force or effect unless and until the Court
approves the Stipulation of Settlement and the Stipulation becomes effective on
the Effective Date (as defined in the Stipulation).
0. I (we) hereby warrant and represent that I (we) have not assigned or
transferred or purported to assign or transfer, voluntarily or involuntarily,
any matter released pursuant to this release or any other part or portion
thereof.
0. I (we) hereby warrant and represent that I (we) have included
information about all of my (our) transactions in Samsonite common stock or
options which occurred during the Class Period, the number of shares of
Samsonite common stock or options held by me (us) at the close of trading on
June 24, 1998 and August 11, 1998.
-9-
<PAGE>
SUBSTITUTE FORM W-9
Request for Taxpayer Identification Number (TIN) and Certification
PART I
NAME: __________________________________________________________________________
Check appropriate box:
[_] Individual/Sole Proprietor [_] Pension Plan
[_] Corporation [_] Partnership [_] Trust
[_] IRA [_] Other
Enter TIN on appropriate line.
For individuals, this is your Social Security Number (SSN).
For sole proprietors, you must show your individual name, but you
may also enter your business or "doing business as" name. You may
enter either your SSN or your Employer Identification Number (EIN).
For other entities, it is your EIN.
_____ - ___ - ________ or _________ - __________________
Social Security Number Employer Identification Number
PART II
For Payees Exempt From Backup Withholding
If you are exempt from backup withholding, enter your correct TIN in Part I and
write "exempt" on the following line. _________________________
PART III
Certification
UNDER THE PENALTY OF PERJURY, I (WE) CERTIFY THAT:
The number shown on this form is my correct Taxpayer
Identification Number; and
I (we) certify that I am (we are) NOT subject to backup
withholding under the provisions of Section 3406 (a)(1)(C) of the
Internal Revenue Code because: (a) I am (we are) exempt from
backup withholding; or (b) I (we) have not been notified by the
Internal Revenue Service that I am (we are) subject to backup
-10-
<PAGE>
withholding as a result of a failure to report all interest or
dividends; or (c) the Internal Revenue Service has notified me
(us) that I am (we are) no longer subject to backup withholding.
NOTE: If you have been notified by the Internal Revenue Service that you are
subject to backup withholding, you must cross out Part II above.
SEE ENCLOSED FORM W-9 INSTRUCTIONS
---
The Internal Revenue Service does not require your consent to any provision of
this document other than the certification required to avoid backup withholding.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing information supplied by the undersigned is true and
correct.
Executed this _________ day of ___________________,
(Month / Year)
in _____________________, ______________________________.
(City) (State / Country)
_____________________________________
(Sign your name here)
_____________________________________
(Type or print your name here)
_____________________________________
Capacity of person(s) signing (e.g.,
Beneficial Purchaser, Executor or
Administrator)
ACCURATE CLAIMS PROCESSING TAKES A
SIGNIFICANT AMOUNT OF TIME.
THANK YOU FOR YOUR PATIENCE.
Reminder Checklist:
1. Please sign the above release and declaration.
2. Remember to attach supporting documentation, if available.
3. Do not send original or copies of stock certificates.
4. Keep a copy of your claim form for your records.
-11-
<PAGE>
5. If you desire an acknowledgment of receipt of your claim form, please
send it Certified Mail, Return Receipt Requested.
6. If you move, please send us your new address.
-12-
<PAGE>
Exhibit B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
--------------------------------------------------------------------------------
Civil Action No. 99-K-705
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R. THEODORE AMMON, MARK H. RACHESKY,
ROBERT L. ROSEN and BERNARD ATTAL,
Defendants,
and
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
--------------------------------------------------------------------------------
[PROPOSED] FINAL JUDGMENT AND ORDER
OF DISMISSAL WITH PREJUDICE
EXHIBIT B
--------------------------------------------------------------------------------
<PAGE>
This matter came before the Court for hearing pursuant to the Order of this
Court, dated _________________, 2000, on the application of the parties for
approval of the settlement set forth in the Stipulation of Settlement dated as
of April 28, 2000 (the "Stipulation"). Due and adequate notice having been
given to the Class as required in said Order, and the Court having considered
all papers filed and proceedings had herein and otherwise being fully informed
in the premises and good cause appearing therefore, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that:
0. This Judgment incorporates by reference the definitions in the
Stipulation, and all terms used herein shall have the same meanings set forth in
the Stipulation.
0. This Court has jurisdiction over the subject matter of the Litigation
and over all parties to the Litigation, including all Members of the Class and
Samsonite Shareholders.
0. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this
Court has certified a Class of all Persons (other than those Persons who timely
and validly request exclusion from the Class) who purchased or otherwise
acquired the common stock or purchased or sold options of Samsonite during the
period September 10, 1996 through and including August 11, 1998, or owned
Samsonite common stock at the time of the Reorganization Plan in June 1998.
Excluded from the Class are the Excluded Persons.
0. With respect to the Class, this Court finds and concludes that: (a)
the Members of the Class are so numerous that joinder of all Class Members in
the class action is impracticable; (b) there are questions of law and fact
common to the Class which predominate over any individual question; (c) the
claims of the Representative Plaintiffs are typical of the claims of the Class;
(d) the Representative Plaintiffs and their counsel have fairly and adequately
represented and protected the interests of the Class Members; and (e) a class
action is superior to other available methods for the fair and efficient
adjudication of the controversy, considering: (i) the interests of the Members
of the Class in individually controlling the prosecution of the separate
actions, (ii) the extent and nature of any litigation
-1-
<PAGE>
concerning the controversy already commenced by Members of the Class, (iii) the
desirability or undesirability of concentrating the litigation of these claims
in this particular forum, and (iv) the difficulties likely to be encountered in
the management of the class action.
0. Pursuant to Federal Rules of Civil Procedure 23 and 23.1, this Court
hereby approves the settlement set forth in the Stipulation and finds that said
settlement is, in all respects, fair, just reasonable and adequate to the Class,
the Samsonite Shareholders and Samsonite.
0. Except as to any individual claim of those Persons (identified in
Exhibit 1 hereto) who have validly and timely requested exclusion from the
Class, the Litigation and all claims contained therein, as well as all of the
Released Claims are dismissed with prejudice as to the Representative
Plaintiffs, the other Members of the Class, and the Samsonite Shareholders and
as against the Released Persons. The Settling Parties are to bear their own
costs, except as otherwise provided in the Stipulation.
0. The Court finds that the Stipulation and settlement are fair, just,
reasonable and adequate as to each of the Settling Parties, the Class and the
Samsonite Shareholders and that the Stipulation and settlement are hereby
finally approved in all respects, and the Settling Parties are hereby directed
to perform its terms.
0. Upon the Effective Date hereof, the Representative Plaintiffs, each of
the Class Members and the Samsonite Shareholders shall be deemed to have, and by
operation of the Judgment shall have, fully, finally and forever released,
relinquished and discharged, respectively, all Released Class Claims and all
Released Derivative Claims against the Released Persons.
0. All Class Members are hereby forever barred and enjoined from
prosecuting any and all of the Released Class Claims against any and all of the
Released Persons.
-2-
<PAGE>
0. All Samsonite Shareholders are hereby forever barred and enjoined from
prosecuting any and all of the Released Derivative Claims against any and all of
the Released Persons.
0. Upon the Effective Date, each of the Released Persons shall be deemed
to have, and by operation of this Judgment shall have, fully, finally and
forever released, relinquished and discharged each and all of the Class Members
and Samsonite Shareholders and counsel to the Representative Plaintiffs from all
claims (including "Unknown Claims"), arising out of, relating to or in
connection with the institution, prosecution, assertion, settlement or
resolution of the Litigation, the Released Class Claims or the Released
Derivative Claims.
0. The notice given to the Class and to Samsonite Shareholders was the
best notice practicable under the circumstances, including the individual notice
to all Members of the Class and Samsonite Shareholders who could be identified
through reasonable effort. Said notices provided the best notice practicable
under the circumstances of those proceedings and of the matters set forth
therein, including the proposed settlement set forth in the Stipulation, to all
Persons entitled to such notices, and said notices fully satisfied the
requirements of Federal Rules of Civil Procedure 23 and 23.1 and the
requirements of due process.
0. Any Plan of Allocation submitted by Plaintiffs' Settlement Counsel or
any order entered regarding the attorneys' fees application shall in no way
disturb or affect this Judgment and shall be considered separate from this
Judgment.
0. Neither the Stipulation nor the settlement contained therein, nor any
act performed or document executed pursuant to or in furtherance of the
Stipulation or the settlement: (i) is or may be deemed to be or may be used as
an admission of, or evidence of, the validity of any and all of the Released
Class Claims or any or all of the Released Derivative Claims, or of any
wrongdoing or liability of any or all of the Defendants, or (ii)
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<PAGE>
is or may deemed to be or may be used as an admission of, or evidence of, any
fault or omission of any or all of the Defendants in any civil, criminal or
administrative proceeding in any court, administrative agency or other tribunal.
Any or all of the Released Persons may file the Stipulation and/or the Judgment
in any other action that may be brought against any or all of them in order to
support a defense or counterclaim based on principles of res judicata,
collateral estoppel, release, good faith settlement, judgment bar or reduction
or any theory of claim preclusion or issue preclusion or similar defense or
counterclaim.
0. Without affecting the finality of this Judgment in any way, this Court
hereby retains continuing jurisdiction over: (a) implementation of this
settlement and any award or distribution of the Settlement Fund, including
interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and
determining applications for attorneys' fees, costs, interest and expenses in
the Litigation; and (d) all parties hereto for the purpose of construing,
enforcing and administering the Stipulation and the Judgment.
0. The Court finds that during the course of the Litigation, the Settling
Parties and their respective counsel at all times complied with the requirements
of Federal Rule of Civil Procedure 11.
0. In the event that the settlement does not become effective in
accordance with the terms of the Stipulation then this Judgment shall be
rendered null and void to the extent provided by and in accordance with the
Stipulation and shall be vacated and, in such event, all orders entered and
releases delivered in connection herewith shall be null and void to the extent
provided by and in accordance with the Stipulation.
IT IS SO ORDERED.
DATED: _________________________ _____________________________________
THE HONORABLE JOHN L. KANE, JR.
UNITED STATES DISTRICT JUDGE
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<PAGE>
Exhibit C
SAMSONITE CORPORATE THERAPEUTICS
. The Company will adopt the following policies:
0. Corporate Governance/Board of Directors
0.0 Upon approval of the settlement by the Court, Samsonite will adopt the
Corporate Governance Policies described below, each to remain in effect for five
years from the date the settlement is approved by the Court.
(a) At least two-thirds of the member of the Board shall be
"independent," as defined below.
(a) To be "independent" in any calendar year, an individual would
have to satisfy the following qualifications:
() has not been employed by Samsonite or any of its
subsidiaries in an executive capacity within the prior five calendar years;
() has not received, during the current calendar year or any of
the three prior calendar years, remuneration, directly or indirectly, other than
de minimis remuneration, as a result of service as, or being affiliated with an
entity (other than an Apollo or Artemis entity) that (1) serves as an adviser,
consultant or legal counsel to Samsonite or to a member of Samsonite's senior
management; or (2) is a significant customer or supplier of Samsonite;
() has no personal services contract(s) with Samsonite, or any
member of Samsonite's senior management;
() is not affiliated with a not-for-profit entity that receives
contributions from Samsonite greater than $60,000 in the prior calendar year;
() during the current calendar year or any of the three prior
calendar years, has not had any business relationship with Samsonite for which
Samsonite has been required to make disclosure under Regulation S-K of the
Securities and
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<PAGE>
Exchange Commission, other than for service as a director, an affiliation with
an Apollo or Artemis entity, or for which relationship no more than de minimis
remuneration was received in any one such year;
() is not employed by a U.S. public company at which an
executive officer of Samsonite serves as a director;
() has not had any of the relationships described in
subsections (i) through (vi), above, with any affiliate (other than an Apollo or
Artemis entity) of Samsonite;
() is not a member of the immediate family of any individual
described in subsections (i) through (vii), above; and
() a director is deemed to have received remuneration, directly
or indirectly, if remuneration, other than de minimis remuneration, was paid by
Samsonite or, its subsidiaries, to any entity (other than an Apollo or Artemis
entity) in which the director has a beneficial ownership interest of five
percent or more, or to an entity by which the director is employed or self-
employed other than as a director. Remuneration is deemed de minimis
remuneration if such remuneration is $60,000 or less in any calendar year, or if
such remuneration is paid to an entity, it (1) did not for the calendar year
exceed the lesser of $5 million, or one percent of the gross revenues of the
entity, and (2) did not directly result in an increase in the compensation
received by the director from that entity.
(a) The Board shall hold an executive session at least once each year
at which employee directors are not present.
(a) The Compensation Committee and the Audit Committee of the Board
of Directors shall each be composed entirely of independent directors.
(a) Nomination of directors and the composition of the Executive
Committee shall be governed by the Stockholders Agreement dated July 13, 1999.
If
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<PAGE>
during the five year period of these therapeutics, the Stockholders Agreement is
terminated, or if it is amended such that it permits or requires more than
one-third of the members of the Board to not be "independent," the Board of
Directors will create a Nominating Committee composed entirely of independent
directors.
() The Nominating Committee shall meet with each prospective
new Board nominee and then shall decide whether or not such individual shall be
nominated for membership to the Board.
() The Nominating Committee, in consultation with the Chairman
of the Board and the Chief Executive Officer, shall consider candidates to fill
vacant Board positions. Candidates shall be selected for their character,
judgment, business experience, time commitment and acumen. Final approval of a
candidate shall be determined by the full Board;
(a) The Compensation Committee shall set annual and long-term
performance goals for the Chairman of the Board and the Chief Executive Officer
and evaluate his performance against such goals and the performance of
Samsonite's peer companies.
(a) The Board's Committees shall have standing authorization, on
their own decision, to retain legal and/or other advisers of their choice, which
advisers shall report directly to the Committee.
(a) The Board of Directors shall adopt a resolution setting forth the
following compensation principles:
() Compensation arrangements shall emphasize pay for
performance and encourage retention of those employees who enhance Samsonite's
performance;
() Compensation arrangements shall promote ownership of
Samsonite stock to further align the interests of management and stockholders;
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<PAGE>
() Compensation arrangements shall maintain an appropriate
balance between base salary and long-term and annual incentive compensation;
() In approving compensation, the recent compensation history
of the executive, including special or unusual compensation payments, shall be
taken into consideration;
() Cash incentive compensation plans for senior executives
shall link pay to achievement of financial goals set in advance by the
Compensation Committee;
() Compensation for directors shall promote ownership of
Samsonite stock to further align the interests of directors and stockholders;
and
() The Compensation Committee shall review annually the
compensation of directors.
(a) The Board of Directors shall adopt a resolution creating the
Corporate Governance Committee, which Committee shall be comprised entirely of
independent directors and perform the functions specified in the Corporate
Governance Committee Guidelines as follows:
() The Corporate Governance Committee, in consultation with the
Chairman of the Board and the Chief Executive Officer, shall be responsible for
periodic review and interpretation of Samsonite's Corporation Governance
Policies and the Corporate Governance Committee Guidelines, as well as
consideration of other corporate governance issues that may, from time to time,
merit consideration by the entire Board;
() The Corporate Governance Committee, in consultation with the
Chairman of the Board and the Chief Executive Officer, shall consider and make
recommendations to the Board concerning the appropriate size and needs of the
Board;
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<PAGE>
() The Board shall establish performance criteria for itself,
and evaluate itself and individual members on an annual basis. Board evaluation
shall include an assessment of whether the Board has the necessary diversity of
skills, backgrounds, experiences, etc., to meet Samsonite's ongoing needs;
() The Corporate Governance Committee shall consider policies
relating to the Board and directors, including committee structure and size,
share ownership, and retirement and resignation;
() The Corporate Governance Committee shall advise the Chairman
of the Board as to an appropriate schedule of Board meetings, seeking to ensure
that the independent directors can perform their duties responsibly while not
interfering with Samsonite's operations;
() The Corporate Governance Committee will provide the Chairman
of the Board with input as to the preparation of the agendas for the Board and
Committee meetings;
() The Corporate Governance Committee will advise the Chairman
of the Board as to the quality, quantity and timeliness of the flow of
information from Samsonite's management that is necessary for the independent
directors to effectively and responsibly perform their duties, and although
Samsonite's management is responsible for the preparation of materials for the
Board, any independent director may specifically request the inclusion of
certain material;
() The Corporate Governance Committee will recommend to the
Chairman of the Board the retention of consultants who report directly to the
Board;
() The Corporate Governance Committee will assist the Board and
Samsonite's officers in assuring compliance with and implementation of the
Corporate Governance Policies and be principally responsible for recommending
revisions to the Corporate Governance Policies;
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<PAGE>
() The Corporate Governance Committee will coordinate, develop
the agenda for, and moderate executive sessions of, the Board's independent
directors, and act as principal liaison between the independent directors and
the Chairman of the Board on sensitive issues; and
() The Corporate Governance Committee will recommend to the
Chairman of the Board the membership of the various Board Committees, as well as
selection of the Committee Chairs.
0. Insider Trading Policy
0.0 Samsonite has adopted the attached insider trading controls governing
the trading in Samsonite securities by directors, officers, all managerial
employees of Samsonite, and all other employees who have or may have access to
material nonpublic information about Samsonite, including Samsonite's financial
results. Samsonite shall maintain these insider trading controls and may amend
them in the future to comply with the law.
0. Corporate Transactions
0.0 The approval by the Company of any future significant recapitalization
or acquisition will require the review and approval by an independent committee
of the Company formed to investigate or evaluate transactions or strategies
involving a potential recapitalization, merger or acquisition of or by the
Company. Such independent committee may, at its discretion, obtain an
independent fairness opinion prior to recommending the approval of any such
transaction to the Board.
0. Internal Controls
The independent Audit Committee will meet on a quarterly basis to review
the Company's financial statements prior to public release and will meet at
least annually to review Samsonite's revenue recognition and reserve policies
and the implementation of
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<PAGE>
these policies by the management of the Company. The Audit Committee will bring
to the Board's attention any material deviation from these policies by
management.
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<PAGE>
Exhibit D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 98-K-1878 (This Document Relates To: All Actions.)
In re SAMSONITE CORPORATION SECURITIES LITIGATION
--------------------------------------------------------------------------------
Civil Action No. 99-K-705
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R.
<PAGE>
THEODORE AMMON, MARK H. RACHESKY, ROBERT L. ROSEN and BERNARD ATTAL,
Defendants,
and
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
--------------------------------------------------------------------------------
[PROPOSED] FINAL JUDGMENT AND ORDER
OF DISMISSAL WITH PREJUDICE
EXHIBIT B
--------------------------------------------------------------------------------
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<PAGE>
This matter came before the Court for hearing pursuant to the Order of this
Court, dated _________________, 2000, on the application of the parties for
approval of the settlement set forth in the Stipulation of Settlement dated as
of April 28, 2000 (the "Stipulation"). Due and adequate notice having been
given to the Class as required in said Order, and the Court having considered
all papers filed and proceedings had herein and otherwise being fully informed
in the premises and good cause appearing therefore, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that:
0. This Judgment incorporates by reference the definitions in the
Stipulation, and all terms used herein shall have the same meanings set forth in
the Stipulation.
0. This Court has jurisdiction over the subject matter of the Litigation
and over all parties to the Litigation, including all Members of the Class and
Samsonite Shareholders.
0. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this
Court has certified a Class of all Persons (other than those Persons who timely
and validly request exclusion from the Class) who purchased or otherwise
acquired the common stock or purchased or sold options of Samsonite during the
period September 10, 1996 through and including August 11, 1998, or owned
Samsonite common stock at the time of the Reorganization Plan in June 1998.
Excluded from the Class are the Excluded Persons.
0. With respect to the Class, this Court finds and concludes that: (a)
the Members of the Class are so numerous that joinder of all Class Members in
the class action is impracticable; (b) there are questions of law and fact
common to the Class which predominate over any individual question; (c) the
claims of the Representative Plaintiffs are typical of the claims of the Class;
(d) the Representative Plaintiffs and their counsel have fairly and adequately
represented and protected the interests of the Class Members; and (e) a class
action is superior to other available methods for the fair and efficient
adjudication of the controversy, considering: (i) the interests of the Members
of the Class in individually controlling the prosecution of the separate
actions, (ii) the extent and nature of any litigation
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<PAGE>
concerning the controversy already commenced by Members of the Class, (iii) the
desirability or undesirability of concentrating the litigation of these claims
in this particular forum, and (iv) the difficulties likely to be encountered in
the management of the class action.
0. Pursuant to Federal Rules of Civil Procedure 23 and 23.1, this Court
hereby approves the settlement set forth in the Stipulation and finds that said
settlement is, in all respects, fair, just reasonable and adequate to the Class,
the Samsonite Shareholders and Samsonite.
0. Except as to any individual claim of those Persons (identified in
Exhibit 1 hereto) who have validly and timely requested exclusion from the
Class, the Litigation and all claims contained therein, as well as all of the
Released Claims are dismissed with prejudice as to the Representative
Plaintiffs, the other Members of the Class, and the Samsonite Shareholders and
as against the Released Persons. The Settling Parties are to bear their own
costs, except as otherwise provided in the Stipulation.
0. The Court finds that the Stipulation and settlement are fair, just,
reasonable and adequate as to each of the Settling Parties, the Class and the
Samsonite Shareholders and that the Stipulation and settlement are hereby
finally approved in all respects, and the Settling Parties are hereby directed
to perform its terms.
0. Upon the Effective Date hereof, the Representative Plaintiffs, each of
the Class Members and the Samsonite Shareholders shall be deemed to have, and by
operation of the Judgment shall have, fully, finally and forever released,
relinquished and discharged, respectively, all Released Class Claims and all
Released Derivative Claims against the Released Persons.
0. All Class Members are hereby forever barred and enjoined from
prosecuting any and all of the Released Class Claims against any and all of the
Released Persons.
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<PAGE>
0. All Samsonite Shareholders are hereby forever barred and enjoined from
prosecuting any and all of the Released Derivative Claims against any and all of
the Released Persons.
0. Upon the Effective Date, each of the Released Persons shall be deemed
to have, and by operation of this Judgment shall have, fully, finally and
forever released, relinquished and discharged each and all of the Class Members
and Samsonite Shareholders and counsel to the Representative Plaintiffs from all
claims (including "Unknown Claims"), arising out of, relating to or in
connection with the institution, prosecution, assertion, settlement or
resolution of the Litigation, the Released Class Claims or the Released
Derivative Claims.
0. The notice given to the Class and to Samsonite Shareholders was the
best notice practicable under the circumstances, including the individual notice
to all Members of the Class and Samsonite Shareholders who could be identified
through reasonable effort. Said notices provided the best notice practicable
under the circumstances of those proceedings and of the matters set forth
therein, including the proposed settlement set forth in the Stipulation, to all
Persons entitled to such notices, and said notices fully satisfied the
requirements of Federal Rules of Civil Procedure 23 and 23.1 and the
requirements of due process.
0. Any Plan of Allocation submitted by Plaintiffs' Settlement Counsel or
any order entered regarding the attorneys' fees application shall in no way
disturb or affect this Judgment and shall be considered separate from this
Judgment.
0. Neither the Stipulation nor the settlement contained therein, nor any
act performed or document executed pursuant to or in furtherance of the
Stipulation or the settlement: (i) is or may be deemed to be or may be used as
an admission of, or evidence of, the validity of any and all of the Released
Class Claims or any or all of the Released Derivative Claims, or of any
wrongdoing or liability of any or all of the Defendants, or (ii)
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<PAGE>
is or may deemed to be or may be used as an admission of, or evidence of, any
fault or omission of any or all of the Defendants in any civil, criminal or
administrative proceeding in any court, administrative agency or other tribunal.
Any or all of the Released Persons may file the Stipulation and/or the Judgment
in any other action that may be brought against any or all of them in order to
support a defense or counterclaim based on principles of res judicata,
collateral estoppel, release, good faith settlement, judgment bar or reduction
or any theory of claim preclusion or issue preclusion or similar defense or
counterclaim.
0. Without affecting the finality of this Judgment in any way, this Court
hereby retains continuing jurisdiction over: (a) implementation of this
settlement and any award or distribution of the Settlement Fund, including
interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and
determining applications for attorneys' fees, costs, interest and expenses in
the Litigation; and (d) all parties hereto for the purpose of construing,
enforcing and administering the Stipulation and the Judgment.
0. The Court finds that during the course of the Litigation, the Settling
Parties and their respective counsel at all times complied with the requirements
of Federal Rule of Civil Procedure 11.
0. In the event that the settlement does not become effective in
accordance with the terms of the Stipulation then this Judgment shall be
rendered null and void to the extent provided by and in accordance with the
Stipulation and shall be vacated and, in such event, all orders entered and
releases delivered in connection herewith shall be null and void to the extent
provided by and in accordance with the Stipulation.
IT IS SO ORDERED.
DATED: ______________________ _____________________________________
THE HONORABLE JOHN L. KANE, JR.
UNITED STATES DISTRICT JUDGE
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<PAGE>
Exhibit E
DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO
Case No. 99-CV-1305
--------------------------------------------------------------------------------
STIPULATION AND ORDER RE DISMISSAL OF DERIVATIVE ACTION
EXHIBIT E
--------------------------------------------------------------------------------
DOROTHY B. KLINGER, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,
vs.
RICHARD R. NICOLOSI, LEON D. BLACK, ROBERT H. FALK, MARC J. ROWAN, APOLLO
INVESTMENT FUND, L.P., LION ADVISORS, L.P., APOLLO ADVISORS, L.P., LUC VAN
NEVEL, THOMAS R. SANDLER, RICHARD H. WILEY, R. THEODORE AMMON, MARK H. RACHESKY,
ROBERT L. ROSEN and BERNARD ATTAL,
Defendants.
- and -
SAMSONITE CORPORATION, a Delaware Corporation,
Nominal Defendant.
--------------------------------------------------------------------------------
WHEREAS, the above-captioned matter is a putative shareholder derivative
action brought under Colorado state law (the "Derivative Action");
WHEREAS, the Derivative Action has previously been removed to the United
States District Court for the District of Colorado, In re Samsonite Corp. Sec.
Litig., 98-K-1878 (the "Federal Action"). The Derivative Action and the Federal
Action collectively are referred to as the "Litigation";
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<PAGE>
WHEREAS, the parties to the Litigation have entered into a Stipulation of
Settlement of the Litigation, including a release of all claims arising out of
or relating to the Litigation (the "Settlement");
WHEREAS, this Settlement is embodied in a Stipulation of Settlement dated
as of April 28, 2000 (the "Stipulation");
WHEREAS, the court presiding over the Federal Action has approved the
Settlement of the Litigation as fair, reasonable and adequate to Samsonite
Shareholders after a hearing on notice to Samsonite Shareholders; and has
entered the Judgment dismissing the Federal Action (a copy of which is attached
hereto as Exhibit 1), which Judgment will become final on ________, 2000;
Based on the foregoing recitals, it is hereby stipulated by the parties to
the above-captioned matter, through their counsel of record, and subject to the
approval of this Court, that the Derivative Action shall be dismissed with
prejudice and without costs to any party upon finality of the Federal Action
Judgment on ________, 2000.
IT IS SO STIPULATED.
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<PAGE>
DATED: ___________________
----------------------------------------------
ROBERT J. DYER III
Robert J. Dyer III #5734
Kip B. Shuman #23593
DYER DONNELLY
801 East 17th Avenue
Denver, CO 80218
Telephone: 303/861-3003
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH
KEITH F. PARK
SPENCER A. BURKHOLZ
SANGEETA G. PATEL
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
PATRICK J. COUGHLIN
100 Pine Street, Suite 2600
San Francisco, CA 94111
Telephone: 415/288-4545
LAW OFFICES OF ALFRED G.
YATES, JR.
ALFRED G. YATES, JR.
519 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Telephone: 412/391-5164
Attorneys for Plaintiff
AKIN, GUMP, STRAUSS,
HAUER & FELD
STEVEN M. PESNER, P.C.
STEPHEN M. BALDINI
ANDREW J. ROSSMAN
JOHN W. BERRY
590 Madison Avenue, 19th Floor
New York, NY 10022-4616
Telephone: 212/872-1070
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<PAGE>
* * *
O R D E R
GOOD CAUSE APPEARING THEREFOR, it is hereby ordered that, effective upon
finality of the dismissal of the Federal Action on ________, 2000, the above-
captioned action is dismissed with prejudice and without costs to any party.
DATED:__________________________ _________________________________________
THE HONORABLE PAUL A. MARKSON, JR.
DISTRICT COURT JUDGE
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