Exhibit 4.9
SECOND AMENDMENT OF
THE RIGHTS AGREEMENT
This SECOND AMENDMENT OF THE RIGHTS AGREEMENT (the "Agreement") is entered into
as of July 13, 1999, by and between Samsonite Corporation, a Delaware
corporation (the "Company") and BankBoston, N.A., a national banking association
(the "Rights Agent").
BACKGROUND
WHEREAS, the Company and the Rights Agent are parties to the Rights Agreement,
dated as of May 12, 1998, as amended on April 7, 1999 (the "Original
Agreement");
WHEREAS, pursuant to Section 26 of the Original Agreement, the parties hereto
have agreed to amend certain provisions of the Original Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and intending to be legally bound, the parties hereto agree
that the Original Agreement is hereby amended as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein shall
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have the meanings assigned to such terms in the Original Agreement.
SECTION 2. Amendments. The parties hereto hereby consent and agree to amend
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the Original Agreement as follows:
(a) Section 1 of the Original Agreement is hereby amended by inserting the
following at the end of Section (c) (iii) thereof:
Notwithstanding anything to the contrary herein, neither Apollo Investment Fund,
L.P. (and its Affiliates and Associates) on the one hand, nor Artemis America
Partnership (and its Affiliates and Associates) on the other hand, shall be
deemed to beneficially own any securities held by the other party as a result of
the Stockholders Agreement, dated as of July 13, 1999, by and among the Company,
Apollo Investment Fund, L.P. and Artemis America Partnership (as if may be
amended from time to time in accordance with the provisions thereof, the
"Stockholders Agreement")."
(b)Section 1 of the Original Agreement is hereby amended by deleting paragraph
(g) in its entirety and inserting in lieu thereof the following:
(g) "Exempted Person" shall mean Apollo Advisors, L.P. and its Affiliates and
Associates and Artemis America Partnership and its Affiliates and Associates, so
long as each of Apollo Advisors, L.P. and Artemis America Partnership, together
with its respective Affiliates and Associates, shall not become the Beneficial
Owner of shares of Common Stock then outstanding in excess of its Applicable
Percentage; provided, however, that from and after such time as Apollo Advisors,
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L.P. or Artemis America Partnership, together with all of its respective
Affiliates and Associates, shall be the Beneficial Owner of shares of Common
Stock then outstanding in excess of its respective Applicable Percentage, Apollo
Advisors, L.P. or Artemis America Partnership, as the case may be, shall no
longer be deemed an "Exempted Person". For purposes of the foregoing, with
respect to Apollo Advisors, L.P., and its Affiliates and Associates, including
Lion Advisors, L.P. (collectively, "Apollo"), (i) from and after the execution
of the Investment Agreement, dated as of April 7, 1999, between the Company and
Apollo Investment Fund, L.P. (the "Investment Agreement"), and prior to the
Back-stop Closing (as such term is defined in the Investment Agreement), the
term "Applicable Percentage" shall mean two percent (2%) plus the percentage of
the outstanding shares of Common Stock beneficially owned by Apollo on the date
hereof (treating for this purpose the shares to be purchased at the Back-stop
Closing as not beneficially owned by Apollo) and (ii) after the Back-stop
Closing, the term "Applicable Percentage" shall mean two percent (2%) plus the
percentage of the outstanding shares of Common Stock beneficially owned by
Apollo immediately after such closing; provided that Apollo's Applicable
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Percentage shall in no event be less than 34%. For purposes of the foregoing,
with respect to Artemis America Partnership ("Artemis"), the term "Applicable
Percentage" shall mean two percent (2%) plus the quotient obtained by dividing
(A) the number of shares of Common Stock which, or the voting rights of which,
Artemis or any of its Affiliates or Associates has the right to acquire, or
acquires, at any time or which otherwise may be distributed to Artemis or to any
of its Affiliates or Associates, in either case by reason of or pursuant to (x)
the terms of the Investment Management Agreement between Artemis and Lion
Advisors, L.P., dated as of June 29, 1990, as amended on April 30, 1999, with
respect to the managed account, (y) the distribution of shares of Common Stock
to the limited partners of Apollo Investment Fund I, L.P., or (z) the terms of
the agreements, dated as of April 5, 1999, as amended on July 13, 0000, xxxxxxx
Xxxxxxx Xxxxxxx Partnership and Apollo Investment Fund, L.P., by (B) the number
of shares of Common Stock outstanding at the time of any calculation to
determine whether Artemis is an Acquiring Person. Notwithstanding anything to
the contrary contained herein, a "group" (as determined pursuant to Rule 13d-5
of the General Rules and Regulations promulgated under the Exchange Act)
consisting solely of Exempted Persons or of solely Exempted Persons and one or
more transferees in a
transaction to which Sections 3(i) (after giving effect to the proviso therein)
and 4 of the Stockholders Agreement apply (a "Section 3(i) Transferee") shall
likewise be treated as an Exempted Person hereunder; provided that the foregoing
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shall not apply to a group which has beneficial ownership of shares of Common
Stock of a Section 3(i) Transferee not subject to the pro rata voting
requirements of Section 4 of the Stockholders Agreement."
c) Section 7(a) of the Original Agreement is hereby amended by deleting the
phrase "May 31, 2002" appearing in the seventh line from the end thereof and
inserting in lieu thereof the phrase "May 31, 2007".
(d) Exhibits B and C of the Original Agreement are hereby amended by deleting
all references to the phrase "May 31, 2002" appearing therein and inserting in
lieu thereof the phrase "May 31, 2007".
Except as otherwise specified above, there is no amendment of any other term,
condition or provision of the Original Agreement all of which are hereby
ratified and confirmed by the Company.
SECTION 3. Counterparts. This Agreement (a) may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument, (b) shall be effective
only in this specific instance for the specific purpose set forth herein, and
(c) does not allow any other or further departure from the terms of the Original
Agreement, which terms shall continue in full force and effect. All of such
counterparts shall constitute one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other parties.
SECTION 4. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
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IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the parties
hereto as of the date first written above.
SAMSONITE CORPORATION
By: /s/Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: General Counsel
BANKBOSTON, N.A.
By: /s/Xxxxx Xxxxxx-Xxxx
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Name: Xxxxx Xxxxxx-Xxxx
Title: Administration Manager
