EXHIBIT 10.8
AMENDED AND RESTATED
CONSULTING AGREEMENT
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This Agreement is made effective between the parties as of the 1st day of
February, 1998, by and between
SAMSONITE EUROPE NV, a corporation organized and existing under the laws of
Belgium, having its registered office at Xxxxxxxxxx 00, 0000 Xxxxxxxxxx,
Xxxxxxx, hereby represented by Messrs. Xxxxxx X. Xxxxxxx and Xxxxxxxxx Xxxxxxx,
(hereinafter referred to as "Company")
and
Xx. Xxx XXX XXXXX, residing at 9700 Qudenaarde, Xxxxxxxxxx 000, (hereinafter
referred to as "Consultant").
Background
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Effective January 1, 1990, Consultant entered into a Consulting Agreement with
the Company, such Consulting Agreement having been amended on January 1, 1992
(as so amended, the "Original Agreement").
The parties now wish to amend and restate the Original Agreement as set forth
below.
Amendment and Restatement
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Accordingly, it is agreed that the Original Agreement is amended and restated in
its entirety as follows:
1. The Company hereby retains Consultant to render regular consulting
services to the Company and such of its affiliated companies as the
Company may designate from time to time.
It is understood that it is an essential feature of this Agreement
that the Consultant shall, during the term of this Agreement, be
entrusted with the overall day to day management of the Company,
accountable only to the Company's Board of Directors in a lawful,
diligent and proper manner.
2. The Consultant hereby accepts such retention and agrees that he
will serve the Company and its affiliates in their business to the
best of his ability and perform services and duties as shall be
reasonably assigned to, and requested of, him by the Company.
3. It is understood between the parties that the Consultant shall
carry on his activities for the Company on a strictly independent and
self-employed basis. Any guidelines which the Company may give with
respect to the exercise of the functions of the Consultant can
therefore not be construed as instructions or the exercise of
authority or supervision on the part of the Company.
The Consultant shall be solely responsible for his good legal
standing, social security status and tax status under the laws of the
applicable jurisdiction. The Consultant shall participant in the Group
Insurance-Pension Plan of Samsonite Europe N.V. as described in the
Plan dated April 2, 1996.
4. During the term of this Agreement, Consultant shall be paid a
minimum annual consultancy fee equal to BF 9,000,000 (nine million
Belgian francs). Monthly advances may be agreed upon. Payment of such
compensation may be effected by the Company and/or by the various
affiliated companies to which services shall be rendered.
5. (a) Consultant will not disclose or furnish to any person, firm
or corporation any confidential or secret information obtained by him
during the period of his service hereunder relating to the Company or
its business, customers, financial statements, conditions or
operations.
(b) Consultant will at the time of the termination of this
service, deliver to the Company any documents, personal annotations
and other property, belonging to or relating to the business of the
Company or its affiliates which may be in his possession, or directly
or indirectly under his control.
6. This Agreement shall commence on the date first above written and
shall remain in force until termination by either party, subject to
the following notice periods:
2
(a) if the Agreement is terminated by the Consultant : six months or
less or zero (at the sole discretion of the Company).
(b) if the Agreement is terminated by the Company : a notice period
calculated in accordance with the following formula:
P'[(0.89xS)% (0.08xA)% (0.0013 x R x i1)] - 2.0
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i2
whereby
P = notice period in number of months.
R = total minimum consultancy fee in Belgian francs corresponding to
the amount stated in point 4, and paid to the Consultant during
the year immediately preceding the giving of notice, divided by
1,000.
i2 = Belgian consumer price index effective during the month during
which notice is given.
i1 = formula factor fixed at 125.30 (basis 100=1988).
S = the number of years which have elapsed since August 1975 and the
date on which notice is given. S is expressed in years and
fractions of years, whereby the fractions are converted as
follows:
1 month = 0.08
2 months = 0.16
3 months = 0.25
4 months = 0.33
5 months = 0.42
6 months = 0.50
7 months = 0.58
8 months = 0.67
9 months = 0.75
10 months = 0.83
11 months = 0.91
12 months = 1
A = the age of the Consultant at the time notice is given. A is
expressed in years and fractions of years, calculated in the same
way as for S.
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In the event a party giving notice fails to observe or insufficiently
observes the above notice periods, it shall pay the other party upon
termination of this Agreement liquidated damages equal to the amount
of the aggregate of Consultancy fees to which the Consultant would
have been entitled to, had such notice period been fully observed.
(c) Notwithstanding the provisions of Section 6(a) hereof, the
Agreement shall be deemed to have been terminated by the Company if
the Executive Management Agreement dated as of February 1, 1998 (the
"Executive Management Agreement"), by and between Samsonite
Corporation and the Consultant shall be terminated by Samsonite
Corporation without Cause (as defined in the Executive Management
Agreement) or by the Consultant for Good Reason (as defined in the
Executive Management Agreement) or by the Consultant for Good Reason
(as defined in the Executive Management Agreement). Notwithstanding
the provisions of Section 6(b) hereof, no notice need be given by the
Company if the Agreement is terminated by the Company for Cause. For
purposes of this Agreement, the Company shall have "Cause" to
terminate the Agreement upon (A) the engaging by the Consultant in
willful misconduct that is materially injurious to the Company, (B)
the embezzlement or misappropriation of funds or property of the
Company by the Consultant or the conviction of the Consultant of a
felony or the entrance of a plea of guilty by the Consultant to a
felony, (C) the termination of the Executive Management Agreement
other than by Samsonite Corporation without Cause (as defined in the
Executive Management Agreement) or by the Consultant for Good Reason
(as defined in the Executive Management Agreement) or (D) the failure
or refusal by the Consultant perform his duties and respon sibilities
hereunder or any other breach by the Consultant of this Agreement in
any material respect if such breach has not been cured by the
Consultant within thirty (30) days after the Preliminary Notice (as
defined below) has been given to the Consultant. For purposes of this
paragraph, no act, or failure to act, on the Consultant's part shall
be considered "willful" unless done, or omitted to be done, by him not
in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. The Agreement shall
not be deemed to have been terminated for Cause, unless the Company
shall have given the Consultant (i) notice (the "Preliminary Notice")
setting forth, in reasonable detail the facts and circumstances
claimed to provide a basis for termination for Cause, (ii) a
reasonable opportunity for the Consultant, together with his counsel,
to be heard before the Board and (iii) a Notice of Termination stating
that, in the good faith judgement of the Board, the Consultant was
guilty of conduct set forth in clauses (A), (B) or (D) above, and
specifying the particulars thereof in reasonable detail. Upon receipt
of the Preliminary Notice, the Consultant shall have thirty (30) days
in which to appear before
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the Board with counsel, or take such other action as he may deem
appropriate, and such thirty (30) day period is hereby agreed to as a
reasonable opportunity for the Consultant to be heard.
7. This Agreement shall be binding upon and inure to the benefit of
any successor to the Company.
8. This Agreement (a) contains the complete and entire understanding
and agreement of the parties hereto respecting the subject matter
hereof, (b) supersedes and cancels any and all understandings, or
agreements, oral or written, respecting the subject matter hereof,
including the Original Agreement, and (c) may not be modified except
by an instrument in writing executed both by the Company and
Consultant.
9. This Agreement shall be governed by and construed in accordance
with the laws of Belgium.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Xxx XXX XXXXX SAMSONITE N.V.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
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