EXHIBIT 10.11
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OVERALL AGREEMENT
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OVERALL AGREEMENT, (this "Overall Agreement") effective as of February 1,
1998 (the "Effective Date"), by and between SAMSONITE CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXXXX XXXXXXX, a resident of Germany (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company wants the Executive to provide his services to various
subsidiaries of the Company from time to time, namely Samsonite GmbH, Samsonite
Europe N.V., and other subsidiaries of Samsonite N.V. (together, the
"Subsidiaries"), and the Executive is willing to do so; and
WHEREAS, This Overall Agreement aims to reflect and confirm the general
terms and conditions of the Executive's providing such services;
NOW, THEREFORE, in consideration of the foregoing and of the premises and
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. TERM
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This Overall Agreement shall have a term (the "Term") beginning on the
Effective Date and expiring on January 31, 2002 ("Expiration Date").
2. POSITIONS AND DUTIES
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(a) The Parties expect that the services to be provided by the Executive
for the Subsidiaries will change from time to time as the needs of the
Subsidiaries change. Nevertheless, the only employment relationship shall be
between the Executive and Samsonite GmbH (Germany), and all other relationships
shall be by mandates, either remunerated or otherwise. Such mandates, the
amount of the Executive's services required by any of the Subsidiaries, and the
remuneration to be paid by any of the Subsidiaries may be changed from time to
time by action of the Subsidiaries. However, at all times, the total
remuneration from the employment relationship and the remunerated mandates shall
be as specified in this Overall Agreement.
(b) Initially, the Executive will serve under an employment agreement,
substantially in the form of Exhibit A attached hereto(the "German Contract"),
in the position of Geschaftsfuhrer for Samsonite GmbH (Germany), and under
remunerated mandates in the positions of:
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(i) Managing Director for Samsonite Europe N.V. (Belgium),
(ii) President du Conseil for Samsonite S.A. (France),
(iii) Director Samsonite SpA (Italy), and
(iv) Director Samsonite Finanziaria S.r.l. (Italy).
(c) Except during customary vacation periods and periods of illness, the
Executive shall, during his engagement hereunder, devote his full business time
and attention to the performance of services for the Subsidiaries, allocating
such time and attention generally according to the needs of such Subsidiaries.
(d) Nothing in this Overall Agreement shall affect the Executive's duty of
loyalty and duty of care to the Company and the Subsidiaries as provided under
applicable laws. The Executive shall perform the his duties for and provide his
services to the Subsidiaries to the best of his ability and in a diligent and
proper manner.
3. COMPENSATION AND RELATED MATTERS
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(a) Base Compensation. During the period of the Executive's engagement
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hereunder, the Company shall cause the Subsidiaries to compensate the Executive
in equal instalments in accordance with their normal payroll practices or in
accordance with the decisions taken by the competent organs of the Subsidiaries
with regard to the remuneration granted to the Executive for the execution of
his mandates, but not less frequently than monthly. Such compensation (the
"Base Compensation") shall be ECU 300,147 (equivalent to US$325,000 converted at
the exchange rate of 0.92436 US$ per ECU, the rate in effect as of the Effective
Date) gross per annum, allocated in the same proportions as in Section 2.(c).
The payments of Base Compensation shall not in any way limit or reduce any other
obligation of the Company hereunder, and no other compensation, benefit or
payment made pursuant to this Overall Agreement shall in any way limit or reduce
the obligation of the Company to cause the payment of the Executive's Base
Compensation as hereunder provided. The Base Compensation payable may not be
reduced. Any increase in the Base Compensation shall become effective at the
time indicated by the Company without the need for an amendment to this Overall
Agreement.
(b) Annual Adjustment. Each year, the Company shall cause the Subsidiaries
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to make a lump sum adjustment to the Executive's Base Compensation (the "Annual
Adjustment") for such year only, equal to an amount between zero and 59.2308%of
the Base Compensation. The total annual adjustment amount will be allocated in
the same proportions as in Section 2.(c) above. The Annual Adjustment shall
consist of a Target Adjustment and a Project Adjustment (each as defined below),
determined as follows:
(i) The "Target Adjustment" shall be zero if the EBIT Attainment Percentage
(as defined below) is less than eighty percent (80%). Otherwise, the
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"Target Adjustment" shall be an amount equal to one-half of the EBIT
Attainment Percentage multiplied by 53.8462% of the Base Compensation. The
"EBIT Attainment Percentage" shall be determined as follows:
THEN THE EBIT ATTAINMENT PERCENTAGE
IF THE EBIT (AS DEFINED BELOW) IS: SHALL BE:
less than the Minimum EBIT Target (as Zero percent (0%)
defined below) for the Company's
preceding fiscal year
equal to the Minimum EBIT Target for the Eighty percent (80%)
Company's preceding fiscal year
greater than the Minimum EBIT Target for The sum of (x) eighty percent (80%), plus
the Company's preceding fiscal year, but (y) the product of twenty percent (20%)
less than the Annual EBIT Target (as multiplied by a fraction, the numerator of
defined below) for the Company's which shall be the excess of (i) the EBIT
preceding fiscal year of the Company for the Company's
preceding fiscal year over (ii) the Minimum
EBIT Target for the Company's preceding
fiscal year, and the denominator of which
shall be the excess of the Annual EBIT
Target for the Company's preceding fiscal
year over the Minimum EBIT Target for
the Company's preceding fiscal year
equals the Annual EBIT Target for the One hundred percent (100%)
Company's preceding fiscal year
greater than the Annual EBIT Target for The sum of (x) one hundred percent
the Company's preceding fiscal year, but (100%) plus (y) the product of twenty
less than the Maximum EBIT Target (as percent (20%) multiplied by a fraction, the
defined below) for the Company's numerator of which shall be the excess of
preceding fiscal year (i) the EBIT of the Company for the
Company's preceding fiscal year over (ii)
the Annual EBIT Target for the
Company's preceding fiscal year, and the
denominator of which shall be the excess
of the Maximum EBIT Target for the
Company's preceding fiscal year over the
Annual EBIT Target for the Company's
preceding fiscal year
equal to or greater than the Maximum One hundred twenty percent (120%)
EBIT Target for the preceding year
(ii) With respect to each fiscal year of the Company ending after January
31, 1998, on or before March 15 of each such year, the board of directors of
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the Company (the "Board") shall determine the "Annual EBIT Target," the "Minimum
EBIT Target" and the "Maximum EBIT Target" for such fiscal year. Promptly after
such targets have been determined, the Company shall provide written notice
thereof to the Executive. The EBIT Targets determined by the Board are expected
to be reasonably achievable in the good faith judgment of the Board, it being
understood that the Maximum EBIT Targets determined by the Board shall generally
reflect a more aggressive, "stretch" budget, and the Minimum EBIT Targets
determined by the Board shall generally reflect an improvement over actual EBIT
for the prior fiscal year. The Board shall have the right, acting unilaterally
and in good faith, to adjust the Annual EBIT Target, the Minimum EBIT Target and
the Maximum EBIT Target upon the occurrence of any acquisition, disposition or
other significant event that occurs with respect to The Company after such
targets have been determined. For purposes of this Section 3.(b), "EBIT" shall
mean, for any period, the Company's consolidated earnings (excluding
extraordinary gains and losses and gains or losses from the sale of fixed assets
outside of the ordinary course of business) from continuing operations before
interest and taxes for such period, and EBIT is expected to be determined on the
same basis as the Annual EBIT Target, the Minimum EBIT Target and the Maximum
EBIT Target. Notwithstanding the foregoing, EBIT for any fiscal may be equitably
adjusted by the Board (solely for the purposes of Section 3.(b)(i)) to the
extent that the Company's business was not conducted in the ordinary course in
accordance with past practices.
(iii) The "Project Adjustment" shall be calculated by multiplying
21.5385% of the Base Compensation times a percentage, ranging from eighty
percent (80%) to one hundred twenty-five percent (125%), set by the Board to
reflect the extent to which the Board determines that the Executive
satisfactorily completed certain projects (the "Annual Projects") established by
the Board with respect to the Company's preceding fiscal year. The Company shall
establish Annual Projects for each fiscal year during the Term and shall provide
the Executive with a written notice of such Annual Projects, which shall
describe such Annual Projects in reasonable detail. The Annual Projects for each
of the Company's fiscal years ending after January 31, 1998 shall be established
on or before March 15 of such year. The Annual Projects for each such fiscal
year shall be developed by the Board in consultation with the Executive, and
shall, in the good faith judgment of the Board, be reasonably achievable. The
Executive acknowledges that the Annual Projects established by the Board may not
be measured by financial results or other quantifiable standards and may depend
on subjective judgments by the Board, and the Executive agrees that the
determination of the Board as to the extent to which such Annual Projects have
been satisfactorily completed shall be conclusive for all purposes, provided
that such determination shall be made in good faith.
(c) Vacations. The Executive shall be entitled to the number of paid
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vacation days in each calendar year determined in accordance with the vacation
policy of Samsonite GmbH as in effect immediately prior to the execution of this
Overall Agreement.
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(d) Services Furnished. The Company shall cause one or more of the
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Subsidiaries to furnish the Executive with office space, secretarial assistance
and such other facilities and services as shall be suitable to the Executive's
position and adequate for the performance of his duties hereunder.
4. TERMINATION
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(a) The Executive's engagement with any Subsidiary, may be terminated at the
initiative of either party to such engagement, subject to the local employment
or corporate legislation applicable to the position held by the Executive for
such Subsidiary.
(b) This Overall Agreement shall be terminated at the earlier of:
(i) the end of the Term, and
(ii) an earlier date coinciding with the termination of the Executive's
relationships with Samsonite GmbH, Samsonite Europe N.V., Samsonite
S.A., Samsonite Finanziaria S.r.l., and Samsonite SpA.
5. COMPENSATION UPON TERMINATION
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(a) When the Executive's engagement is terminated, the Company shall cause
the Subsidiaries to respect the rules under local employment or corporate
legislation to terminate the German Contract and to revoke the mandates.
(b) If the Executive's engagements pursuant to this Overall Agreement
terminate by reason of his death, the Company shall cause the Subsidiaries to
continue to make salary or compensation payments at the rate of the Base
Compensation then in effect in respect of the month of death and the three
calendar months immediately following the month of death.
(c) If the Executive's engagements are terminated by the Subsidiaries prior
to the expiration of the Term, then the Company shall cause:
(i) Samsonite GmbH to respect the termination rules set out in the
German Contract; and
(ii) the other Subsidiaries to take the necessary steps under local
corporate legislation to revoke the mandates of the Executive.
(d) The German Contract provides that upon termination of the German Contract
at the initiative of Samsonite GmbH for any reason other than either (1) a good
and valid cause under German law committed by the Executive, or (2) another
reason which is not one of the reasons set out in Article 12.4 of the German
Contract, the Executive will be entitled to an indemnity upon such termination
which amounts to the greater of:
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(i) the amount of the indemnity provided for in this Overall Agreement
(the "Overall Indemnity"); and
(ii) an amount due to the Executive upon termination of the German
Contract which might be due under German local law.
(e) The Overall Indemnity referred to above and in Article 12.6.1(a) of the
German Contract shall be equal to the lesser of:
(i) the excess of ECU462,180 over the amount payable by Samsonite GmbH
under Article 13 of the German Contract (Note: ECU462,180 is the
equivalent of US$500,000 converted at the exchange rate of 0.92436 US$ per
ECU), and
(ii) the excess of the amount of the Executive's Base Compensation which
would have been paid to the Executive pursuant to this Overall Agreement
from the date of termination of the German Contract through the Expiration
Date, over the amount payable by Samsonite GmbH under Article 13 of the
German Contract.
(f) In the event that this Overall Agreement is continued in effect to the
end of the Term, and at or prior to the Expiration Date the Company has not
offered to extend this Overall Agreement upon the same or substantially similar
terms and conditions for an additional term of at least one year, the Company
shall cause the Samsonite GmbH to pay the Executive in a lump sum, within thirty
(30) days following the Expiration Date, an amount equal to the excess, if any,
of ECU231,090 over any amounts payable under the German Contract, including
without limitation, Articles 12 or 13 of the German Contract, or per German law
(Note: ECU231,090 is the equivalent of US$250,000 converted at the exchange rate
of 0.92436 US$ per ECU).
(g) Neither the Company nor any of the Subsidiaries shall have any further
obligations to the Executive, except as may be provided under the express terms
of this Overall Agreement or of any applicable pension or welfare plans, or in
accordance with the survivorship provisions of Section 12 of this Overall
Agreement.
(h) Coinciding with the termination or expiration of the Executive's
engagement under this Overall Agreement, the Executive shall voluntarily waive
any and all rights the Executive may then have to receive any payments from the
Company or any of the Subsidiaries, whether as indemnities in lieu of notice,
severance, or otherwise, except as expressly set forth in this Agreement. For
this purpose, the Executive hereby irrevocably authorizes any officer or
director of the Company to execute on behalf of the Executive any documentation
reasonably required by the Company to effect such voluntarily waiver.
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6. LEGAL FEES; REIMBURSEMENT OF CERTAIN EXPENSES
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The Company shall promptly reimburse the Executive for the reasonable
legal fees and expenses incurred by the Executive in connection with enforcing
or defending any right of the Executive pursuant to this Overall Agreement;
provided that the Company shall have no obligation to reimburse the Executive
for any such fees and expenses unless the resolution of any action taken by the
Executive to enforce such right is in favor of the Executive. In addition, the
Company hereby agrees that the amount of any such legal fees and expenses
reimbursed to the Executive in connection with obtaining or enforcing any right
or benefit provided to the Executive by the Company pursuant to or in accordance
with this Overall Agreement shall not be taken into account by the Company in
determining the aggregate compensation paid or payable to the Executive under
this Overall Agreement.
7. INDEMNIFICATION
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(a) Unless prohibited by applicable law, the Company shall indemnify, and
shall cause the Subsidiaries to indemnify, the Executive (and his legal
representatives) against all losses, claims, damages, liabilities, costs,
charges and expenses incurred or sustained by him or his legal representatives
in connection with any action, suit or proceeding to which he (or his legal
representatives) may be made a party by reason of his being or having been a
director, officer or employee of the Company or any of the Subsidiaries,
including payment of expenses in advance of the final disposition of the
proceeding.
(b) If any action, suit or proceeding is brought or threatened against the
Executive in respect of which indemnity may be sought against the Company or any
of the Subsidiaries pursuant to the foregoing, the Executive shall notify the
Company promptly in writing of the institution of such action, suit or
proceeding. Such action, suit or proceeding shall be defended by and be under
the exclusive control of the Company and its counsel; except that the Executive
shall have the right to designate separate counsel, acceptable to the Executive
in his sole discretion, and, to the extent of a conflict of interest with the
Company or any of the Subsidiaries, the right to direct, control and supervise
the Executive's defense of such action, suit or proceeding.
8. TAXES
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The Executive agrees that the Company and the Subsidiaries may deduct
from all amounts payable by any of them to the Executive all social security
contributions and withholding taxes required by law to be withheld with respect
to such payments.
9. CONFIDENTIALITY
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Unless otherwise required by law or judicial process, the Executive
shall keep confidential all confidential information known to the Executive
concerning the Company
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or any of the Subsidiaries, and their respective businesses, both during his
engagement hereunder and following the termination of the Executive's engagement
hereunder, until such information either (1) is publicly disclosed by the
Company or one of the Subsidiaries, or (2) otherwise becomes publicly disclosed
other than through the Executive's actions. The Executive shall provide notice
to the Company in advance of any disclosure required by law or judicial process
in a timely manner to permit the Company to oppose such compelled disclosure.
10. SUCCESSORS; BINDING AGREEMENT
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(a) This Overall Agreement shall be binding upon and inure to the benefit of
the Company, the Subsidiaries, and any successor of the Company, including,
without limitation, any corporation or corporations acquiring directly or
indirectly all or a substantial portion of the stock, business or assets of the
Company, whether by merger, restructuring, reorganization, consolidation,
division, sale or otherwise (and such successor shall thereafter be deemed the
"Company" for the purposes of this Overall Agreement).
(b) This Overall Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amounts would be
still payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided hereunder, shall be paid in accordance with the terms
of this Overall Agreement to the Executive's devisee, legatee, or other
beneficiary or, if there be no such beneficiary, to the Executive's estate.
11. NOTICE
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For purposes of this Overall Agreement, notices, demands and all other
communications provided for in the Overall Agreement shall be in writing and
shall be deemed to have been duly given (i) when hand delivered, (ii) when sent
if sent by overnight mail, overnight courier or facsimile transmission, or (iii)
when mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: If to the Company:
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Xxxxxxxxx Xxxxxxx General Counsel
Xxxxxxxxxxxxxxxx 00 Samsonite Corporation
61462 Konigstein Im Taunus 11200 East Forty-Fifth Avenue
Germany Denver, Colorado 80239-3018
United States of America
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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12. SURVIVORSHIP
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The respective rights and obligations of the parties hereunder set forth
in Sections 5, 6, 7, 8, and 9 of this Overall Agreement shall survive any
termination of this Overall Agreement to the extent necessary for the intended
preservation of such rights and obligations.
13. REPRESENTATIONS AND WARRANTIES
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The Company represents and warrants that it is fully authorized and
empowered to enter into this Overall Agreement, and this Overall Agreement is
valid, binding and enforceable against the Company in accordance with its terms,
except to the extent affected or limited by applicable bankruptcy laws or other
statutes governing the rights of creditors generally and any regulations or
interpretations thereof. The Executive represents and warrants that his
execution of this Overall Agreement and his performance of his duties and
responsibilities under this Overall Agreement shall not violate or result in a
breach of the terms of any agreement to which he is a party or by which he is
bound.
14. MISCELLANEOUS
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(a) Entire Agreement. The parties hereto agree that this Overall Agreement,
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together with the agreements entered between the Executive and any of the
Subsidiaries pursuant to this Overall Agreement, contains the entire
understanding and agreement between the Executive and either the Company or any
of the Subsidiaries with respect to the subject matter hereof, and except for
the Stock Option Agreement dated 2/20/98, supersedes all prior understandings
and agreements, including, without limitation, the Employment Agreement
effective as of June 25, 1990, between the Executive and Samsonite GmbH, and the
Employment Agreement with the Executive dated January 1, 1990. The provisions
of this Overall Agreement may not be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the parties
hereto. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Overall Agreement.
(b) Waiver. No waiver by either party hereto at any time of any breach by
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the other party hereto of any condition or provision of this Overall Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
(c) Choice of Law. The validity, interpretation, construction and
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performance of this Overall Agreement shall be governed by the laws of the state
of New York, without giving effect to the conflict of laws principles thereof.
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15. VALIDITY
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The invalidity or unenforceability of any provision or provisions of
this Overall Agreement shall not affect the validity or enforceability of any
other provision or provisions of this Overall Agreement, which shall remain in
full force and effect.
16. COUNTERPARTS
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This Overall Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused its name to be subscribed to
this Overall Agreement by its duly authorized representative and the Executive
has executed this Overall Agreement as of the date and the year first above
written.
Samsonite Corporation
By: /s/ Xxx Xxx Xxxxx /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxx Xxx Xxxxx Xxxxxxxxx Xxxxxxx
Title: President
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