EXHIBIT 10.47
NONQUALIFIED
STOCK OPTION AGREEMENT
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This Agreement, effective as of the 29th day of OCTOBER,
1996, is made by and between Samsonite Corporation, a Delaware corporation (the
"Company"), and Xxxxxxxxx Xxxxxxx (the "Employee").
The Company desires to grant to the Employee a right to acquire shares
of common stock, par value $.01 per share of the Company ("Common Stock"),
according to the terms and conditions provided herein and thereby provide
additional incentives to the Employee to increase the long-term value of the
Company and further align his interests with those of the stockholders of the
Company.
In consideration of the promises and covenants contained in this
Agreement, and other good and valuable consideration, the Company and the
Employee hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a
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determination by the Compensation Committee of the Board of Directors of the
Company (the "Committee"), on OCTOBER 29, 1996 and pursuant to the Company's
1995 Stock Option and Incentive Award Plan, the Company, subject to the terms
and conditions of this Agree ment, hereby confirms that the Employee has been
granted, effective OCTOBER 29, 1996 (the "Date of Grant"), as a matter of
separate inducement and agreement, and in addition to and not in lieu of salary
or other compensation for services, the right to purchase from the Company an
aggregate of 50,000 shares of Common Stock (the "Options"). The Options shall
vest as provided in Section 4 hereof and shall be subject to adjustment as
provided in Section 6 hereof.
2. EXERCISE PRICE. The initial exercise price per
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share (the "Exercise Price") for the Options shall be $35.50.
3. NON-TRANSFERABILITY OF OPTIONS. The Options may not
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be as signed, transferred or otherwise disposed of, or pledged or hypothecated
in any way, and shall not be subject to execution, attachment or other process
otherwise than by will or by the laws of descent and distribution. The Options
may be exercised during the lifetime of the Employee only by the Employee.
4. TERM AND EXERCISE OF OPTIONS. The Options shall
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remain outstanding (subject to the vesting and exercisability provisions
provided herein) for a period of six (6) years beginning on the Date of Grant
(the "Option Term"). 33.3% of the Options shall vest on each January 1 in the
years 1997 and 1998, and 33.4% of the Options shall vest on January 1 in 1999,
so long as the Employee remains continually employed by the Company from the
effective date of this Agreement through such date of vesting. Except as
otherwise provided in Section 5 hereof, Options that have vested shall remain
exercisable in whole or in part at any time, and from time to time, until the
earlier to occur of the expiration of the Option Term and the expiration of
ninety (90) days after the date of the termination of the Employee's employment
with the Company. The Employee shall not have any right to dividends or any
other rights of a stockholder of the Company with respect to any shares of
Common Stock underlying the Options until such shares have been issued to him or
her upon the exercise of the Options.
5. TERMINATION. The Employee's rights with respect to
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the Options upon termination of his or her employment with the Company or death
are as follows:
(a) Cause. If the Employee is terminated from employment with the
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Company for Cause (as defined below), then all the Options (whether vested or
un-vested) shall automatically terminate and be canceled (without any action on
the part of the Company) on the date upon which Preliminary Notice (as
described below) is given to the Employee, provided that the Employee's
employment is thereafter terminated.
For purposes of this Agreement, the Company shall have "Cause" to
terminate the Employee's employment upon (A) the engaging by the Employee in
willful misconduct that is materially injurious to the Company, (B) the
embezzlement or misappropriation of funds or property of the Company or its
subsidiaries by the Employee or the conviction of the Employee of a felony or
the entrance of a plea of guilty, or nolo contendere by the Employee to a felony
or (C) the failure or refusal by the Employee to devote his full business
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time and attention to the performance of his duties and responsibilities in
connection with his employment or any other breach by the Employee of the terms
of his employment in any material respect if such breach has not been cured by
the Employee within thirty (30) days after the Preliminary Notice has been given
to the Employee. For purposes of this paragraph, no act, or failure to act, on
the Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. The Employee shall not be
deemed to have been terminated for Cause unless the Company shall have given the
Employee (i) notice (the "Preliminary Notice") setting forth, in reasonable
detail the facts and circumstances claimed to provide a basis for termination
for Cause, (ii) a reasonable opportunity for the Employee, together with his
counsel, to be heard before the Committee and (iii) a notice of termination
stating that, in the good faith judgement of the Committee, the Employee was
guilty of conduct set forth in clauses (A), (B), or (C) above, and specifying
the particulars thereof in reasonable detail. Upon receipt of the Preliminary
Notice, the Employee shall have thirty (30) days in which to appear before the
Committee 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 Employee to be heard.
(b) Disability. If the Employee is terminated from his or her
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employment with the Company by reason of disability (as defined below), then all
unvested Options shall auto matically terminate and be canceled (without any
action on the part of the Company) on the effective date of such termination.
All Options that have vested prior to such date shall remain exercisable until
the earlier to occur of (i) the first anniversary of such date and (ii) the
expiration of the Option Term.
For purposes of this Agreement, "disability" shall mean that the
Company determines in good faith, based upon medical evidence acceptable to it,
that the Employee has become physically or mentally disabled or incapacitated
for a continuous period of ninety (90) days to such an extent that he is unable
to perform the essential functions of his job.
(c) Death. If the Employee dies while employed by the Company, then
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all un-vested Options shall automatically terminate and be canceled (without any
action on the part of the Company) on the date of death. Following the
Employee's death, his executors, administrators, legatees or distributees may
exercise the Options that have vested prior to the date of death until the
earlier to occur of (i) the first anniversary of such date and (ii) the
expiration of the Option Term.
(d) Change of Control. If the Employee is terminated after a Change
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of Control (as defined below) has occurred for any reason other than for Cause
as defined
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herein, or for failure to perform his or her duties and responsibilities at the
level reasonably expected for the Employee's position, and consistent with
expectations applied to the Employee prior to the Change of Control, any and all
unvested options shall immediately vest, and all vested options, whether vesting
prior to or upon such date, shall remain exercisable until the earlier to occur
of (i) the ninetieth day following the date of such termination and (ii) the
expiration of the Option Term. Change of Control means (i) any sale, transfer or
other conveyance (whether directly, or through a merger, consolidation or
similar transaction), or series of related sales, transfers, or other
conveyances, of the outstanding capital stock of the Company pursuant to which
any person (or group of affiliated persons) other than an Excluded Person,
becomes the beneficial owner of more than 50% of the outstanding Common Stock or
(ii) any sale, transfer or other conveyance of all or substantially all of the
Company assets to any person (or group of affiliated persons) other than to an
Excluded Person. For the purposes of the foregoing definition, "Excluded Person"
means and includes (A) Apollo Investment Fund, L.P. ("Apollo"), any of its
affiliates, and, so long as Apollo or an affiliate of Apollo controls the right
to vote the securities in question, any partner, shareholder or trustee of any
of them, (B) any corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company and (C) the Company or any subsidiary of the Company.
(e) Other Terminations of Employment.
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(i) If the Employee's employment is terminated by the Employee
other than for Good Reason (as defined below), then all unvested Options shall
automatically terminate and be canceled (without any action on the part of the
Company) on the date of such termination. All Options that have vested prior to
such date shall remain exercisable until the earlier to occur of (i) the
ninetieth day following such date and (ii) the expiration of the Option Term.
For purposes of this Agreement, "Good Reason" shall mean, so long as
the Employee has not been guilty of the conduct set forth in clauses (A), (B) or
(C) of the definition of Cause in Section 5(a) hereof, (i) a failure by the
Company to comply with any material term of the Employee's employment that has
not been cured within thirty (30) days after written notice of such
noncompliance has been given by the Employee to the Company or (ii) the
assignment to the Employee by the Company of duties inconsistent with the
Employee's position, duties or responsibilities including, but not limited to,
any material reduction in such position, duties or responsibilities or material
change in his title without the consent of the Employee.
(ii) If the Employee's employment is terminated (A) by the Company
without
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Cause other than for disability or (B) by the Employee for Good Reason, then, as
of the date of such termination, all the Options that have not become vested
prior to the date of termination shall become vested as of such date.
(f) Extension After Certain Terminations. If the Employee's
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employment with the Company is terminated other than for a reason described in
paragraph (a), (b), (c) or (d) above, and the Employee dies or becomes disabled
within ninety (90) days after such termi nation of employment, then the
Employee's executors, administrators, legatees or distributees may exercise the
Options, to the extent vested and exercisable as of the date of such termina
tion, until the earlier to occur of (i) the first anniversary of the date of
death or disability and (ii) the expiration of the Option Term.
6. CERTAIN ADJUSTMENTS. The number and kind of
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securities that may be purchased upon the exercise of the Options and the
Exercise Price shall be subject to ad justment from time to time upon the
occurrence of any of the following events after the date hereof:
(a) Recapitalization, Capital Reorganization, Reclassification,
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Consolidation, Merger or Sale. In case of any recapitalization or capital
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reorganization of the Company or any reclassification of the outstanding Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or combination),
or in case of any consolidation or merger of the Company with or into another
corporation (other than a merger with another corporation in which the Company
is the surviving corporation and that does not result in any reclassifi cation
of or change in the outstanding Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivi sion or combination), or in case of any sale or transfer to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Employee shall thereafter have the right to
acquire upon exercise of the Options, in lieu of each share of Common Stock
theretofore issuable upon exercise of the Options, the kind and amount of shares
of capital stock, other securities, money and/or property receivable in respect
of each share of Common Stock upon such recapitalization, reorganization,
reclassification, consolidation, merger, sale or transfer. The provisions of
this paragraph (a) shall similarly apply to succes sive recapitalizations,
reorganizations, reclassifications, consolidations, mergers, sales and
transfers.
(b) Subdivision or Combination of Shares. If the Company shall
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subdivide or combine its outstanding shares of Common Stock, (i) in case of
subdivision of shares, the Exercise Price shall be proportionately reduced (as
of the effective date of such subdivision,
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or, if the Company shall take a record of holders of its Common Stock for the
purpose of so subdividing, as of the applicable record date, whichever is
earlier) to reflect the increase in the total number of shares of Common Stock
outstanding as a result of such subdivision, or (ii) in the case of a
combination of shares, the Exercise Price shall be proportionately increased (as
of the effective date of such combination or, if the Company shall take a record
of holders of its Common Stock for the purpose of so combining, as of the
applicable record date, whichever is earlier) to reflect the reduction in the
total number of shares of Common Stock outstanding as a result of such
combination. In the event that an adjustment pursuant to this paragraph (b) is
made as of the record date for purposes of any subdivision or combi nation and
such subdivision or combination is not so made, the Exercise Price shall again
be adjusted to be the Exercise Price that would then be in effect if such record
date had not been fixed.
(c) Certain Dividends and Distributions. If the Company shall pay a
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dividend on, or make any other distribution to the holders of, its outstanding
Common Stock in shares of its Common Stock, the Exercise Price shall be
adjusted, as of the date the Company shall take a record of the holders of
Common Stock for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as of the date of such payment or other
distribution), to that price determined by multiplying the Exercise Price in
effect immediately prior to such record date (or if no such record is taken,
immediately prior to such payment or other distribution), by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution; provided, that if
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the foregoing adjustment is made to the Exercise Price as of a record date for
such dividend or other distribution and such dividend or distribution is not so
paid or made, the Exercise Price shall again be adjusted to be the Exercise
Price that would then be in effect if such record date had not been fixed.
(d) Adjustment of Number of Shares. Upon each adjustment and
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readjustment of the Exercise Price pursuant to paragraph (b) or (c) of this
Section 6, the number of shares of Common Stock then issuable upon exercise of
the Options shall be adjusted, to the nearest 1/10th of a whole share, to the
product obtained by multiplying such number of shares issuable upon exercise of
the Options immediately prior to such adjustment in the Exercise Price by a
fraction, the numerator of which shall be the Exercise Price imme diately prior
to such adjustment, and the denominator of which shall be the Exercise Price
immediately thereafter.
7. METHOD OF EXERCISE OF OPTIONS. (a) Subject to the
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terms and
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conditions of this Agreement, the Options shall be exercisable by notice (an
"Exercise No xxxx") and payment to the Company in accordance with the procedure
set forth herein; provided, that the aggregate Exercise Price with respect to
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any one such exercise shall not be less than $10,000, unless such
exercise represents an exercise of all Options that are vested and exercisable
as of the date of such exercise. Partial shares may not be exercised. If the
Employee fails to accept delivery of and pay for all or any part of the number
of shares specified in the Exercise Notice upon tender or delivery thereof, his
or her right to exercise the Options with respect to such undelivered shares may
be terminated, in the sole discretion of the Committee.
(b) Each Exercise Notice shall: (i) state the number of shares in
respect of which the Options are being exercised, (ii) be accompanied by payment
as provided in paragraph (c) below, and (iii) be signed by the person or persons
entitled to exercise such Options. If such Options are being exercised by any
person or persons other than the Employee, the Exercise Notice shall be
accompanied by proof, satisfactory to the Company and its counsel, of the right
of such person or persons to exercise such Options.
(c) Subject to Section 11 hereof, payment of the Exercise Price and
estimated taxes and fees shall be made by delivering to the Company any one, or
a combination of, the following: (i) a certified or bank cashier's check payable
to the Company or its order, or a wire transfer directly to an account specified
by the Company, (ii) one or more certificates evidencing shares of Common Stock
owned by the Employee immediately prior to such exercise, together with a duly
executed stock power, having an aggregate Fair Market Value (as defined below)
on the date on which the Exercise Notice is given equal to the aggregate
Exercise Price and estimated taxes and fees or (iii) a copy of irrevocable
instructions to a registered broker/dealer to deliver promptly to the Company an
amount of proceeds from the sale of shares of Common Stock to be issued pursuant
to the Options being exercised or of a loan made with respect to shares of
Common Stock to be issued pursuant to the Options being exercised sufficient, in
either case, to pay the Exercise Price ("Cashless Exercise"). All exercise
instructions must be submitted by the Employee on designated company forms or
through designated Company computer programs (Company intranet processes).
(d) The certificate or certificates representing shares of Common
Stock to be issued upon exercise of the Options shall be registered in the name
of the person or persons exercising such Options (or, if such Options are
exercised by the Employee and if the Em ployee so requests in the applicable
Exercise Notice, shall be registered in the name of the Employee and his or her
spouse jointly, with right of survivorship) but only upon compliance with all
the provisions of this Agreement, and such certificate(s) shall be delivered
within 10 days after receipt of payment and completion of such compliance by the
Employee; provided,
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that in the case of clause (iii) of the first sentence of Section 7(c), the
Company shall not be required to make delivery of the certificate(s) until
payment is actually received from such broker/dealer.
(e) The Company shall have no obligation to issue or deliver
fractional shares of Common Stock upon exercise of the Options but may, in its
sole discretion, elect to do so. In lieu of issuing any such fractional share,
the Company shall pay to the person exercising the Options, promptly following
such exercise, an amount in cash equal to the Fair Market Value of such fraction
of a share on the date of exercise. The "Fair Market Value" per share of Common
Stock as of any date of determination, shall mean (i) the closing sales price
per share of Common Stock on the national securities exchange on which such
stock is principally traded, on the next preceding date on which there was a
sale of such stock on such exchange, or (ii) if the shares of Common Stock are
not listed or admitted to trading on any such exchange, the closing price as
reported by the NASDAQ Stock Market for the last preceding date on which there
was a sale of such stock on such exchange, or (iii) if the shares of Common
Stock are not then listed on a national securities exchange or on the NASDAQ
Stock Market, the average of the highest reported bid and lowest reported asked
prices for the shares of Common Stock as reported by the National Association of
Securities Dealers, Inc. Automated Quotations ("NASDAQ") system for the last
preceding date on which such bid and asked prices were reported, or (iv) if the
shares of Common Stock are not then listed on any securities exchange or prices
therefor are not then quoted in the NASDAQ system, such value as determined in
good faith by the Board (or any duly authorized committee thereof).
8. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this
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Agreement shall confer upon the Employee the right to continue in the employ of
the Company or to be entitled to any right or benefit not set forth in this
Agreement or to interfere with or limit in any way the right of the Company to
terminate the Employee's employment.
9. WITHHOLDING TAXES. The Company shall have the right
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to require the Employee (or such other person, if any, who has the right to
exercise the Options) to pay to the Company in cash the amount of any federal,
state, local and foreign income and other taxes that the Company may be required
to withhold before delivering to the Employee (or such other person) a
certificate or certificates representing shares of Common Stock issuable
hereunder.
10. APPROVAL OF COUNSEL. Any exercise of the Options
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and the issuance and delivery of shares of Common Stock pursuant thereto shall
be subject to approval, by the Company's counsel, of all legal matters in
connection therewith, including compliance with
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the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, the requirements of any stock exchange upon which the
Common Stock may then be listed and any applicable state securities or "blue
sky" laws. The Employee understands that, as of the date hereof, neither the
Options nor the shares of Common Stock issuable upon exercise of the Options
have been registered under the Securities Act or any applicable state securities
or "blue sky" laws.
11. REGISTRATION RIGHTS. If the Company proposes to
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file a registration statement on Form S-8 (or any successor form for the
registration under the Securities Act of securities to be offered pursuant to
employee benefit plans) and such form then permits the registration thereunder
of the Common Stock underlying the Options, the Company shall include in such
registration the Common Stock underlying the Option, subject to then applicable
rules and regulations, in order to permit the public resale thereof by the
Employee. The registration rights set forth in this Section 12 shall apply only
to the extent that an effec tive registration statement is then required for the
public sale by the Employee of the Common Stock underlying the Options.
12. NON-COMPETITION. Employee agrees that during
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employment with the Company, and for a period of one year thereafter, Employee
shall not, directly or indirectly, as a principal, officer, director, employee,
or in any other capacity whatsoever, without prior written consent of the
Company, engage in any activity with, or provide services to, any person or
entity engaged in, or about to engage in, any business activity that is
competitive with the business then engaged in by Samsonite, in the geographic
areas within which Employee's work has been concerned during the twelve months
preceding the termination Employee's employment with the Company.
However, nothing in this Agreement shall prevent Employee from making
or holding any investment in any amount in securities of a competitive business
traded on a national securities exchange or traded in the over the counter
market, provided said investments do not exceed one percent (1%) of the issued
and outstanding stock of any such competitive business.
Employee acknowledges and agrees that (1) breach of this Section 12 is
appropriately remedied by injunctive relief, including interim or temporary
relief, and Employee hereby consents thereto; and (2) the Company may refuse to
allow the exercise of any otherwise vested Options in the event of an alleged
breach by Employee of this Section 12, and such Options shall be terminated and
canceled upon determination of such breach; and (3) the Company is not liable
for the gain or loss by the Employee due to the
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increase or decrease of the Fair Market Value of the Company stock during the
period in which the Company may have refused to accept exercise instructions
pending final determination of the Employee's breach of this Agreement.
13. NOTICES. For the purposes of this Agreement,
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notices, demands and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given (i) when hand
delivered, (ii) when sent, if sent by overnight mail, overnight courier or
facsimile transmission or (iii) (unless otherwise specified) when mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed as follows:
Samsonite Corporation
00000 Xxxx Xxxxx-Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
c/o Chief Administrative Officer & Secretary
with a copy to each member of the Compensation Committee who is not an officer
or an em ployee of the Company, at the Company's address, or to such other
address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
All notices to the Employee or other person or persons then entitled
to exercise the Options shall be addressed to the Employee or such other person
or persons at the then current address of the Employee contained in the employee
payroll records of the Company.
Anyone to whom a notice may be given under this Agreement
may designate a new address by notice to that effect.
14. BENEFITS OF AGREEMENT. This Agreement shall inure
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to the benefit of and be binding upon each successor and assign of the Company.
All obligations imposed upon the Employee and all rights granted to the Company
under this Agreement shall be binding upon the Employee and, to the limited
extent set forth herein, the Employee's heirs, legal representatives and
successors. No other person shall have any rights under this Agreement.
15. SEVERABILITY. If any one or more provisions of this
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Agreement is deemed to be illegal or unenforceable, such illegality or un-
enforceability shall not affect the validity or enforceability of the remaining
legal and enforceable provisions herein, which shall be construed as if such
illegal or unenforceable provision or provisions had not been
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inserted.
16. ENTIRE AGREEMENT. This Agreement contains the
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entire understand ing and agreement between the parties hereto, and supersedes
all prior understandings and agreements between them respecting the subject
matter hereof. The provisions of this Agree ment may not be modified, waived
nor discharged unless such waiver, modification or dis charge is agreed to in
writing, signed by the parties hereto.
17. WAIVER. No waiver by either party hereto, at any
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time, of any breach by the other party of, or compliance with, any condition or
provision of this Agreement to be performed by such other party, shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
18. GOVERNING LAW. This Agreement shall be construed
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and governed in accordance with the laws of the State of New York, without
regard to the conflicts of law principles thereof.
19. INCORPORATION BY REFERENCE. The incorporation herein
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of any terms, by reference to another document, shall not be affected by the
termination of any agreement contained in such other document, nor by the
invalidity of any provision thereof.
20. TIME PERIODS. Any action required to be taken under
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this Agreement within a certain number of days shall be taken within that number
of calendar days; provided, that if the last day for taking such action falls on
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a weekend or a holiday, the period during which such action may be taken shall
be automatically extended to the next business day.
21. COUNTERPARTS. This Agreement may be executed in
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counterparts, each of which shall be deemed to be an original, but both of which
together shall constitute one and the same instrument.
22. MISCELLANEOUS. Employee agrees to abide by the laws
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and regulations governing Xxxxxxx Xxxxxxx, the terms of this Stock Option
Agreement, and the policies and decisions of the management of the Company in
all matters concerning this stock option grant of October 29, 1996, and
acknowledges receipt of the following documents:
Received Documents:
a. Stock Option Agreement
b. Stock Option Questions & Answers
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c. Avoiding Xxxxxxx Xxxxxxx Brochure
UNDERSTOOD AND AGREED TO:
Employee:
/s/ XXXXXXXXX XXXXXXX
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(Signature)
SAMSONITE CORPORATION
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chief Administrative Officer & Secretary
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