Exhibit 10.11
-------------
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
Dated as of June 24, 1998
between
SAMSONITE CORPORATION
and
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions
2. Registration Rights
2.1 Demand Registration
2.2 Piggy-Back Registration
2.3 Reduction of Offering
2.4 Limitations, Conditions and
Qualifications to Obligations Under
Registration Covenants
3. Registration Procedures
4. Indemnification and Contribution
5. Miscellaneous
(a) No Inconsistent Agreements
(b) Amendments and Waivers
(c) Notices
(d) Successors and Assigns
(e) Rules 144 and 144A
(f) Counterparts
(g) Headings
(h) Governing Law
(i) Severability
(j) Entire Agreement
Exhibit A
THIS COMMON STOCK REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of June24, 1998, between Samsonite
Corporation, a Delaware corporation (the "Company"), and CIBC
▇▇▇▇▇▇▇▇▇▇▇ Corp., a Delaware corporation (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated as of
June18, 1998, between the Company and the Initial Purchaser (the
"Purchase Agreement"), relating to the sale by the Company to the
Initial Purchaser of up to $175,000,000 in aggregate liquidation value
of its Senior Redeemable Exchangeable Preferred Stock, SeriesA, par
value $.01 per share (the "Preferred Stock"), along with Warrants
(each a "Warrant," and collectively, the "Warrants") for the purchase
of an aggregate of 1,959,000 shares of its Common Stock, par value
$0.01 per share (the "Common Stock"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company has agreed
to provide to the Initial Purchaser and its direct and indirect
transferees (the "Holders"), among other things, the registration
rights for the Common Stock set forth in this Agreement and the piggy-
back rights for the Common Stock set forth herein. The execution of
this Agreement is a condition to the obligations of the Initial
Purchaser to purchase the Preferred Stock and Warrants under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
-----------
capitalized defined terms shall have the following meanings:
"Affiliate" shall mean, of any Person, a Person who, directly or
---------
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such other Person. The
term "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise;
provided, however, that beneficial ownership of at least 10% of the
-------- -------
voting securities of a Person shall be deemed to be control.
"Business Day" means any day except a Saturday, a Sunday, or any day
-----------
on which banking institutions in New York, New York are required or
authorized by law or other governmental action to be closed and other
than a Legal Holiday.
"Common Stock" shall mean the Common Stock, par value $0.01 per share,
------------
of the Company.
"Company" shall have the meaning set forth in the preamble and shall
-------
also include the Company's successors.
"Demand Registration" shall have the meaning set forth in Section
--------------------
2.1(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time.
"Holder" shall mean the Initial Purchaser, for so long as the Initial
------
Purchaser owns any Common Stock, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Common Stock, as reflected in the stock books of the Company.
"Included Shares" shall have the meaning set forth in Section2.1(a).
---------------
"indemnified party" shall have the meaning set forth in Section 4(c).
-----------------
"indemnifying party" shall have the meaning set forth in Section 4(c).
------------------
"Initial Purchaser" shall have the meaning set forth in the preamble.
-----------------
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
-------------
banking institutions in New York, New York are required by law,
regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment may be made on the next succeeding day that is
not a Legal Holiday.
"Person" shall mean an individual, corporation, partnership, joint
------
venture, association, joint stock company, trust, unincorporated
organization, or other legal entity.
"Piggy-Back Registration" shall have the meaning set forth in Section
-----------------------
2.2.
"Preferred Stock" shall have the meaning set forth in the preamble.
---------------
"Prospectus" means a prospectus which meets the requirements of
----------
Section10 of the Securities Act.
"Purchase Agreement" shall have the meaning set forth in the preamble.
------------------
"Purchase Election" shall have the meaning set forth in Section
-----------------
2.1(b).
"Purchase Offer" shall have the meaning set forth in Section 2.1(b).
--------------
"Purchase Offer Payment Date" shall have the meaning set forth in
---------------------------
Section 2.1(b).
"Registrable Securities" shall mean the shares of Common Stock
----------------------
issuable upon exercise of the Warrants. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when (i)a Registration Statement with respect to such
securities shall
have been declared effective under the Securities Act and such
securities shall have been disposed of pursuant to such Registration
Statement, (ii)such securities have been or could be sold to the
public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act, (iii)such
securities shall have been otherwise transferred by such Holder and
new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company or its
transfer agent and subsequent disposition of such securities shall not
require registration or qualification under the Securities Act or any
similar state law then in force or (iv)such securities shall have
ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
---------------------
Company's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees and expenses,
fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), rating agency fees,
printing expenses, messenger, telephone and delivery expenses, fees
and disbursements of counsel for the Company and all independent
certified public accountants (but not including any underwriting
discounts or commissions or transfer taxes, if any, attributable to
the sale of Registrable Securities by Holders of such Registrable
Securities).
"Registration Obligation" shall have the meaning set forth in Section
-----------------------
2.4.
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers any of the Warrant Shares pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such Registration Statement.
"Requisite Shares" shall mean a number of Registrable Securities equal
----------------
to not less than 25% of the Registrable Securities held in the
aggregate by all Holders.
"Rule 144" shall mean Rule 144 under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule (other than
Rule144A) or regulation hereafter adopted by the SEC providing for
offers and sales of securities made in compliance therewith resulting
in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such
---------
Rule may be amended from time to time, or any similar rule (other than
Rule144) or regulation hereafter adopted by the SEC providing that a
holder of securities other than an issuer making offers and sales of
securities in compliance therewith will not be an underwriter for
purposes of the Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Selling Holder" shall mean a Holder who is selling Warrant Shares in
--------------
accordance with the provisions of Section 2.1 or 2.2 hereof.
"Transfer Agent" means any transfer agent or registrar appointed by
--------------
the Company for the Common Stock.
"Warrant Shares" means the shares of Common Stock issued and issuable
--------------
upon exercise of the Warrants.
"Withdrawal Election" shall have the meaning set forth in Section 2.3.
-------------------
2. Registration Rights.
-------------------
2.1 Demand Registration.
-------------------
(a) Request for Registration. At any time and from time to time on or
------------------------
after December21, 1998, Holders owning, individually or in the
aggregate, at least the Requisite Shares may make a written request
for a shelf registration under the Securities Act of their Registrable
Securities (a "Demand Registration"). Any such request will specify
the number of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. Subject to the
conditions set forth in Section 2.4 hereof, upon a demand, the Company
will prepare, file and use its best efforts to cause to be effective
within 150 days of such demand a Registration Statement in respect of
such Registrable Securities. The Company shall give written notice of
such registration request within 10 days after the receipt thereof to
all other Holders. Within 20 days after receipt of such notice by any
Holder, such Holder may request in writing that Registrable Securities
be included in such registration and the Company shall include in the
Demand Registration the Registrable Securities of
any such Selling Holder requested to be so included (the "Included
Shares"). Each such request by such other Selling Holders shall
specify the number of Included Shares proposed to be sold and the
intended method of disposition thereof. Subject to Section2.1(c), in
no event shall the Company be required to register Registrable
Securities pursuant to this Section2.1 more than a maximum of two
separate occasions.
(b) Repurchase Election. (i) Notwithstanding the foregoing
-------------------
provisions of Section 2.1(a), the Company shall not be obligated to
effect a Demand Registration if the Company elects to make an offer to
repurchase (a "Purchase Offer") all of the Registrable Securities (a
"Purchase Election") by mailing notice of such Purchase Offer to all
Holders of Registrable Securities on a date (the "Purchase Election
Date") not more than 30 days after the receipt of any request for a
Demand Registration and indicating in such Purchase Offer that the
Purchase Election will be consummated on a Business Day (the "Purchase
Offer Payment Date") not more than 60 days after the Purchase Election
Date at a price per share of Common Stock equal to (i)the average of
the closing market prices of the Common Stock for 30 consecutive
Business Days selected by the Company from the period of 45 Business
Days preceding the date of receipt by the Company of the applicable
Demand Registration request if the Common Stock shall have been listed
on a national securities exchange or the Nasdaq National Market or
traded through an automated quotation system during such entire 45
Business Day period, or (ii)if the Common Stock shall not have been so
listed or traded during such entire 45 Business Day period, the fair
market value per share of Company Common Stock (without any discount
for lack of liquidity, the amount of Company Common Stock proposed to
be sold or the fact that the Warrants and shares of Company Common
Stock held by the holders thereof may represent a minority interest in
a private company (if the Company is a private company at the time))
determined by an independent nationally recognized investment banking
firm selected by the Company.
(ii) Notice of a Purchase Offer shall be mailed by the Company (or
caused to be mailed by the Company), not less than 30 days nor more
than 60 days before the Purchase Offer Payment Date, to each Holder of
Registrable Securities at its last registered address. The Purchase
Offer shall remain open from the time of mailing for at least 20
Business Days and until 5:00 p.m. New York City time on the Business
Day next preceding the Purchase Offer Payment Date. The notice,
which shall govern the terms of the Purchase Offer, shall include such
disclosures as are required by law and shall state:
(1) that the Purchase Offer is being made pursuant to this
Section2.1(b) and that all Registrable Securities tendered for
repurchase will be accepted for payment;
(2) the purchase price per share of Common Stock calculated as set
forth above and the Purchase Offer Payment Date;
(3) that any Registrable Securities accepted for payment pursuant
to the Purchase Offer shall cease to be outstanding after the Purchase
Offer Payment Date unless the Company defaults in making payment
therefor of the purchase price;
(4) that Holders electing to have Registrable Securities purchased
pursuant to a Purchase Offer will be required to surrender such
Warrant Shares, together with a completed letter of transmittal, to
the Company (or its agent as designated by the Company in such notice)
at the address specified in the notice no later than 5:00p.m. New York
City time on the Business Day prior to the Purchase Offer Payment
Date;
(5) that Holders will be entitled to withdraw their election if
the Company (or such designated agent) receives, not later than
5:00p.m. New York City time on the Business Day prior to the Purchase
Offer Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the number of Warrant
Shares delivered for purchase and a statement that such Holder is
withdrawing its election to have such Warrant Shares purchased and
promptly thereafter the Company (or such designated agent) shall
redeliver the withdrawn Warrant Shares to the Holder;
(6) that a Holder electing not to tender such Holder's Registrable
Securities for purchase pursuant to such Purchase Offer by 5:00p.m.
New York City time on the Business Day prior to the Purchase Offer
Payment Date will have no continuing right to require the Company to
repurchase such Holder's Registrable Securities; and
(7) that Holders whose Warrant Shares are tendered for purchase in
part only will be issued new certificates representing the number of
the unpurchased Warrant Shares surrendered. On the Purchase Offer
Payment Date, the Company shall (i)accept for payment Registrable
Securities or portions thereof tendered pursuant to the Purchase
Offer, (ii)promptly deliver to Holders of Warrant Shares so accepted
payment of the purchase
price therefor and (iii)issue and mail or deliver to such Holders new
certificates representing a number of shares of Common Stock equal to
the unpurchased portion of the Warrant Shares surrendered. Upon
payment for all Registrable Securities tendered pursuant to a Purchase
Offer the Company shall be deemed to have effected the Demand
Registration.
The Company shall comply, to the extent applicable, with the
requirements of Sections13 and 14 of the Exchange Act, and any other
securities laws or regulations in connection with the repurchase of
Registrable Securities pursuant to a Purchase Offer. To the extent
that the provisions of any securities laws or regulations conflict
with the provisions of this Section2.1(b), the Company shall comply
with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section2.1(b) by
virtue thereof.
(c) Effective Registration. A registration will not be deemed to have
----------------------
been effected as a Demand Registration unless it has been declared
effective by the SEC and the Company has complied in all material
respects with its obligations under this Agreement with respect
thereto; provided that if, after it has become effective, the offering
of Registrable Securities pursuant to such registration is or becomes
the subject of any stop order, injunction or other order or
requirement of the SEC or any other governmental or administrative
agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason
other than the act or omissions of the Selling Holders), in each case
prior to the sale of all Registrable Securities thereunder such
registration will be deemed not to have been effected. If (i)a
registration requested pursuant to this Section2.1 is deemed not to
have been effected or (ii)the registration requested pursuant to this
Section2.1 does not remain effective for a period equal to the lesser
of (a)six months (which shall not be required to be consecutive)
beyond the effective date thereof and (b)the consummation of the
distribution by the Selling Holders of the Included Shares, then the
Company shall continue to be obligated to effect an additional
registration pursuant to this Section 2.1. The Selling Holders of
Registrable Securities shall be permitted to withdraw all or any part
of the Included Shares from a Demand Registration at any time prior to
the effective
date of such Demand Registration. If at any time a Registration
Statement is filed pursuant to a Demand Registration, and subsequently
a sufficient number of Included Shares are withdrawn from the Demand
Registration so that such Registration Statement does not cover at
least 25% of the Registrable Securities held by all Holders, the
Selling Holders who have not withdrawn their Included Shares shall
have the opportunity to include an additional number of Registrable
Securities in the Demand Registration so that such Registration
Statement covers at least 25% of the Registrable Securities held by
all Holders. If an additional number of Registrable Securities is not
so included so that such Registration Statement does not cover at
least 25% of the Registrable Securities held by all Holders, the
Company may withdraw the Registration Statement. In the event that a
Registration Statement has been filed and the Company withdraws the
Registration Statement solely due to the occurrence of the events
specified in the prior two sentences, such withdrawn Registration
Statement will count as a Demand Registration; otherwise such
withdrawn Registration Statement will not count as a Demand
Registration and the Company shall continue to be obligated to effect
a registration pursuant to this Section2.1.
(d) Expenses. The Company will pay all Registration Expenses in
--------
connection with the registrations requested pursuant to Section2.1(a).
Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to a registration statement
requested pursuant to this Section2.1.
(e) No Entitlement to Underwritten Offering. No request by a holder
---------------------------------------
of Registrable Securities for a Demand Registration shall entitle such
holder to have such Registrable Securities sold pursuant to an
underwritten offering pursuant to such Demand Registration, it being
also understood that the Company will not be required to include
information in any Demand Registration beyond that then required by
the rules and regulations under the Securities Act.
2.2 Piggy-Back Registration. If at any time the Company proposes
-----------------------
to file a Registration Statement under the Securities Act with respect
to an offering by the Company for its own account or for the account
of any of its respective securityholders of any class of its common
equity securities (other than (i)a Registration Statement
on Form S-4 or S-8 (or any successor form having similar effect) or
(ii)a Registration Statement filed in connection with an offer or
offering of securities solely to the Company's existing
securityholders) for sale on the same terms and conditions as the
securities of the Company or any other selling securityholder included
therein, then the Company shall give written notice of such proposed
filing to the Holders of Registrable Securities as soon as practicable
(but in no event less than 20 Business Days before the anticipated
filing date), and such notice shall offer such Holders the opportunity
to register such number of shares of Registrable Securities as each
such Holder may request (which request shall specify the Registrable
Securities intended to be disposed of by such Selling Holder and the
intended method of distribution thereof), subject to reduction as
hereinafter set forth (a "Piggy-Back Registration"). The Company shall
use its best efforts to cause the managing underwriter or underwriters
(if any) of such proposed underwritten offering to permit the
Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any
similar securities of the Company or any other securityholder included
therein and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method of
distribution thereof except as otherwise provided in Section 2.3. Any
Selling Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any Registration Statement
pursuant to this Section2.2 by giving written notice to the Company of
its request to withdraw no later than 5 Business Days before such
Registration Statement becomes effective. The Company may withdraw a
Piggy-Back Registration at any time prior to the time it becomes
effective; provided that the Company shall give prompt notice thereof
--------
to participating Selling Holders. The Company will pay all
Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section2.2, and each
Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to a registration statement
effected pursuant to this Section2.2.
No registration effected under this Section2.2, and no failure to
effect a registration under this Section2.2, shall relieve the Company
of its
obligation to effect a registration upon the request of Holders
pursuant to Section2.1, and no failure to effect a registration under
this Section2.2 and to complete the sale of shares of Common Stock in
connection therewith shall relieve the Company of any other obligation
under this Agreement.
2.3 Reduction of Offering.
---------------------
(a) Piggy-Back Registration. (i) If the managing underwriter(s) of
-----------------------
any underwritten offering described in Section2.2 have advised the
Company that it is their opinion that the total number of shares which
the Company, the Selling Holders and any other Persons desiring to
participate in such registration intend to include in such offering is
such as to materially and adversely affect the success of such
offering, including the price at which such securities can be sold,
then the number of shares to be offered for the account of the Selling
Holders and all such other Persons (other than the Company)
participating in such registration shall be eliminated or reduced pro
rata in proportion to the respective number of shares requested to be
registered to the extent necessary to reduce the total number of
shares requested to be included in such offering to the number of
shares, if any, recommended by such managing underwriters; provided,
--------
however, that if such offering is effected for the account of any
-------
securityholder of the Company other than the Selling Holders, pursuant
to the demand registration rights of any such securityholder, then the
number of shares to be offered for the account of the Selling Holders
and all other Persons (other than the Company) participating in such
registration (but not such securityholders who have exercised their
demand registration rights) shall be eliminated or reduced pro rata in
--- ----
proportion to the respective number of shares requested to be
registered to the extent necessary to reduce the total number of
shares requested to be included in such offering to the number of
shares, if any, recommended by such managing underwriters.
(ii) If the managing underwriter or underwriters of any underwritten
offering described in Section2.2 notify the Selling Holders requesting
inclusion of Registrable Securities in such offering, that the kind of
securities that the Selling Holders, the Company and any other Persons
desiring to participate in such registration intend to include in such
offering is such as to adversely affect the success of such offering,
(x)the Registrable Securities to be included in such offering shall be
reduced as
described in clause (i)above or (y)if a reduction in the Registrable
Securities pursuant to clause (i) above would, in the judgment of the
managing underwriter(s) or underwriters, be insufficient to
substantially eliminate such adverse effect that inclusion of the
Registrable Securities requested to be included would have on such
offering, such Registrable Securities will be excluded from such
offering.
(b) If, as a result of the pro ration provisions of this Section2.3,
any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has
requested to be included, such Selling Holder may elect to withdraw
his request to include Registrable Securities in such registration (a
"Withdrawal Election"); provided, however, that a Withdrawal Election
-------- -------
shall be irrevocable and, after making a Withdrawal Election, a
Selling Holder shall no longer have any right to include Registrable
Securities in the registration as to which such Withdrawal Election
was made.
2.4 Limitations, Conditions and Qualifications to Obligations
---------------------------------------------------------
Under Registration Covenants. The obligations of the Company set forth
----------------------------
in Sections 2.1 and 2.2 hereof are subject to each of the following
limitations, conditions and qualifications:
(a) Subject to the next sentence of this paragraph, the Company shall
be entitled to postpone, for a reasonable period of time, the filing
or effectiveness of, or suspend the rights of any Holders to make
sales pursuant to, any Registration Statement otherwise required to be
prepared, filed and made and kept effective by it hereunder; provided,
--------
however, that the duration of such postponement or suspension may not
-------
exceed the earlier to occur of (A)15 days after the cessation of the
circumstances described in the next sentence of this paragraph on
which such postponement or suspension is based or (B)120 days after
the date of the determination of the Board of Directors referred to in
the next sentence, and the duration of such postponement or suspension
shall be excluded from the calculation of the six-month period
described in Section 2.1(c) hereof. Such postponement or suspension
may only be effected if the Board of Directors of the Company
determines in good faith that the filing or effectiveness of, or sales
pursuant to, such Registration Statement would materially impede,
delay or interfere with any financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction
involving the Company or any of its Affiliates or require disclosure
of material information which the Company has a bona fide business
---- ----
purpose for preserving as confidential. If the Company shall so
postpone the filing or effectiveness of, or suspend the rights of any
Holders to make sales pursuant to, a Registration Statement it shall,
as promptly as possible, notify any Selling Holders of such
determination, and the Selling Holders shall (y)have the right, in the
case of a postponement of the filing or effectiveness of a
Registration Statement, upon the affirmative vote of the Selling
Holders of not less than a majority of the Registrable Securities to
be included in such Registration Statement, to withdraw the request
for registration by giving written notice to the Company within 10
days after receipt of such notice or (z)in the case of a suspension of
the right to make sales, receive an extension of the registration
period equal to the number of days of the suspension. Any Demand
Registration as to which the withdrawal election referred to in the
preceding sentence has been effected shall not be counted for purposes
of the two Demand Registrations the Company is required to effect
pursuant to Section 2.1 hereof.
(b) The Company shall not be required by this Agreement to include
securities in a Registration Statement pursuant to Section 2.2 hereof
if (i)in the written opinion of counsel to the Company, addressed to
the Holders and delivered to them, the Holders of such securities
seeking registration would be free to sell all such securities within
the current calendar quarter without registration under Rule 144 under
the Securities Act, which opinion may be based in part upon the
representation by the Holders of such securities seeking registration,
which representation shall not be unreasonably withheld, or upon
representation by the Company that each such Holder is not an
Affiliate of the Company within the meaning of the Securities Act, and
(ii)all requirements under the Securities Act for effecting such sales
are satisfied at such time.
(c) The Company's obligations shall be subject to the obligations of
the Selling Holders, which the Selling Holders acknowledge, to furnish
all information and materials and to take any and all actions as may
be required under applicable federal and state securities laws and
regulations to permit the Company to comply with all applicable
requirements of the SEC and to obtain any acceleration of the
effective date of such Registration Statement.
(d) The Company shall not be obligated to cause any special audit to
be undertaken in connection with any registration pursuant to this
Agreement unless such audit is requested by the underwriters with
respect to such registration.
3. Registration Procedures. In connection with the obligations
-----------------------
of the Company with respect to any Registration Statement pursuant to
Sections2.1 and 2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Company and (ii) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith, and the Company shall use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement effective for the applicable period, cause
each Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act;
(c) furnish to each Holder of Registrable Securities and to each
underwriter of an underwritten offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition
of the Registrable Securities;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder thereof covered by a Registration
Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
-------- -------
required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified, (ii)take any action that would
subject it to general service of
process in any jurisdiction in which it is not then so subject or
(iii)subject itself to taxation in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly and, if
requested by such Holder, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-
effective amendments and supplements thereto become effective, (ii)of
any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus
or for additional information after the Registration Statement has
become effective, (iii)of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that
purpose, (iv)if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects or if the Company receives
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose and (v) of the happening
of any event during the period a Registration Statement is effective
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) furnish to each Holder of Registrable Securities and to the
Initial Purchasers, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(with documents incorporated therein by reference or exhibits
thereto);
(h) cooperate with the Selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and registered in such names as the Selling
Holders may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section3(e)(v)
hereof, use reasonable efforts to prepare a supplement or post-
effective amendment to a Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the Company shall not be required to amend or supplement
-------
a Registration Statement, any related Prospectus or any document
incorporated therein by reference in the event that, and for so long
as, an event occurs and is continuing as a result of which the
Registration Statement, any related Prospectus or any document
incorporated therein by reference as then amended or supplemented
would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and
each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines in good faith that such
disclosure is not necessary, the Company agrees promptly to notify
each Holder of such determination, to amend or supplement the
Prospectus if necessary to correct any untrue statement or omission
therein and to furnish each Holder such numbers of copies of the
Prospectus as so amended or supplemented as each Holder may reasonably
request;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement
or amendment or supplement to a Prospectus or any document which is to
be incorporated by reference into a Registration Statement or a
Prospectus after initial filing of a Registration Statement, provide
copies of such document to the Holders and make available for
discussion of such document the
representatives of the Company as shall be reasonably requested by the
Holders of Registrable Securities;
(k) obtain a CUSIP number for the Common Stock if one has not already
been obtained;
(l) (i)make reasonably available for inspection by a representative
of, and counsel for, any managing underwriter participating in any
disposition pursuant to a Registration Statement, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and (ii)cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by such representative, counsel or any such managing
underwriter in connection with any such Registration Statement; and
(m) take all action necessary so that the Warrant Shares will be
listed on the principal securities exchanges and markets within the
United States of America (including the NASDAQ National Market
System), if any, on which other shares of Common Stock are then
listed.
The Company may, as a condition to such Holder's participation in any
Registration Statement, require each Holder of Registrable Securities
to (i)furnish to the Company such information regarding the Holder and
the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in
writing and (ii)agree in writing to be bound by this Agreement.
4. Indemnification and Contribution. (a)The Company agrees to
--------------------------------
indemnify and hold harmless each Holder and each person, if any, who
controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against all
losses, claims, damages and liabilities (including, without
limitation, any reasonable legal fees or other expenses actually
incurred by any Holder or any such controlling or affiliated person in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, and any
underwriter with respect thereto (or any amendment thereto), pursuant
to which Registrable Securities were registered under the Securities
Act, or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or
caused by any untrue statement
or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information
relating to any Holder furnished to the Company in writing by such
Holder expressly for use in any such Registration Statement or
Prospectus; provided that the foregoing indemnity with respect to any
--------
preliminary prospectus shall not inure to the benefit of any Holder
(or to the benefit of any person controlling such Holder) from whom
the person asserting any such losses, claims, damages or liabilities
purchased Registrable Securities if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the related Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and a copy of the related
Prospectus (as so amended or supplemented) shall have been furnished
to such Holder at or prior to the sale of such Registrable Securities,
as the case may be, to such person.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such
Holder, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use
in any Registration Statement (or any amendment thereto), any
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus. The liability of any Holder under this paragraph(b) shall
in no event exceed the proceeds received by such Holder from sales of
Registrable Securities giving rise to such obligations.
(c) Promptly after receipt by an indemnified party under this
Section4 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section4, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
that it may have to any indemnified party except to the extent that
such omission materially prejudices the indemnifying party. In case
any such action is brought against any indemnified party, and such
indemnified party notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the named parties in any such action
-------- -------
(including any impleaded parties) include both the indemnified party
and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties that are different
from or additional to those available to any such indemnifying party,
then the indemnifying parties shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified
party under this Section4 for any legal or other expenses, other than
reasonable out-of-pocket costs of investigation, incurred by such
indemnified party in connection with the defense thereof, unless
(i)the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it
being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances,
representing the indemnified parties under such paragraph(a) or
paragraph(b), as the case may be, who are parties to such action or
actions); (ii)the indemnifying party has
authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying parties; or (iii)the
indemnifying party shall have failed to assume the defense or retain
counsel reasonably satisfactory to the indemnified party. After such
notice from the indemnifying parties to such indemnified party (so
long as the indemnified party shall have informed the indemnifying
parties of such action in accordance with this Section4 on a timely
basis prior to the indemnified party seeking indemnification
hereunder), the indemnifying parties will not be liable under this
Section4 for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the
indemnifying party, unless such indemnified party waived its rights
under this Section4, in which case the indemnified party may effect
such a settlement without such consent.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section4 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Holders on
the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative fault of the
Company on the one hand and the Holders on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and each Holder agrees that it would not be just or
equitable if contribution pursuant to this Section4 were determined by
pro rata allocation or by any other method of allocation that does not
--------
take account of the equitable considerations referred to in
paragraph(d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred to
in paragraph(d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred (and not otherwise reimbursed) by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section4,
in no event shall a Selling Holder be required to contribute any
amount in excess of the amount by which proceeds received by such
Selling Holder from sales of Registrable Securities exceeds the amount
of damages that such Selling Holder has otherwise been required to pay
by reason of such untrue or allegedly untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section4 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
5. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not entered into nor
--------------------------
will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's other issued
and outstanding securities, if any, under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained
the written consent of Holders of at least a majority in aggregate
number of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided,
--------
however, a waiver or consent to departure from the provisions hereof
-------
that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights
of other Holders of Registrable Securities may be given by the Holders
of a majority of the Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i)if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section5(c), which address
initially is, with respect to the Initial Purchaser, the address set
forth in the Purchase Agreement, with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.; and (ii)if to the Company, initially at the Company's
address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the
provisions of this Section5(c), with a copy to: Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: GregoryA. ▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: (i)at the time delivered by hand, if personally delivered, five
Business Days after being deposited in the mail, postage prepaid, if
mailed; (ii)when answered back, if telexed; (iii)when receipt is
acknowledged, if telecopied; and (iv)on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for
an express assignment, subsequent Holders; provided, however, that
-------- -------
nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Securities in violation of the terms
of this Agreement or the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms
and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(e) Rules 144 and 144A. For so long as the Company is subject to the
------------------
reporting requirements of Section13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding the
Company will use its best efforts to file the reports required to be
filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner
and, if at any time the Company is not required to file such reports,
it will, upon the request of any Holder of Registrable Securities,
make publicly available other information of a like nature so long as
necessary to permit sales pursuant to Rule 144 or Rule 144A under the
Securities Act. The Company further covenants that so long as any
Registrable Securities remain outstanding to make available to any
Holder of Registrable Securities in connection with any sale thereof,
the information required by Rule144A(d)(4) under the Securities Act in
order to permit resales of such Registrable Securities pursuant to
(a)such Rule 144A, or (b) any similar rule or regulation hereafter
adopted by the SEC.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT.
(i) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or
impaired thereby.
(j) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of
the subject
matter contained herein and therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
SAMSONITE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Samsonite Corporation
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director