Exhibit 99.9
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of September
__, 1999 between Samsonite Corporation(the "Company") and BankBoston, N.A, as
subscription agent (the "Agent"). All terms not defined herein shall have the
meaning given in the prospectus (the "Prospectus") included in the Registration
Statement on Form S-1 (File No. 333-78839) filed by the Company with the
Securities and Exchange Commission on May 19, 1999, as amended by any amendment
filed with respect thereto (the "Registration Statement").
WHEREAS, the Company proposes to make subscription offers by issuing
certificates or other evidences of subscription rights, in the form designated
by the Company (the "Subscription Certificates") to shareholders of record (the
"Shareholders") of its Common Stock, par value $0.01 per share ("Common Stock"),
as of a record date specified by the Company (the "Record Date"), pursuant to
which each Shareholder will have certain rights (the "Rights") to subscribe for
shares of Common, as described in and upon such terms as are set forth in the
Prospectus, a final copy of which has been or, upon availability will promptly
be, delivered to the Agent; and
WHEREAS, the Company wishes the Agent to perform certain acts on behalf of
the Company, and the Agent is willing to so act, in connection with the
distribution of the Subscription Certificates and the issuance and exercise of
the Rights to subscribe therein set forth, all upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Appointment. The Company hereby appoints the Agent to act as subscription
agent in connection with the distribution of Subscription Certificates and the
issuance and exercise of the Rights in accordance with the terms set forth in
this Agreement and the Agent hereby accepts such appointment.
2. Form and Execution of Subscription Certificates.
(a) Each Subscription Certificate shall be irrevocable and transferable.
The Agent shall, in its capacity as Transfer Agent of the Company, maintain a
register of Subscription Certificates and the holders of record thereof (each of
whom shall be deemed a "Shareholder" hereunder for purposes of determining the
rights of holders of Subscription Certificates). Each Subscription Certificate
shall, subject to the provisions thereof, entitle the Shareholder in whose name
it is recorded to the following:
(1) With respect to Record Date Shareholders and any of their
transferees, the right to acquire during the Subscription Period, as defined in
the Prospectus, at the Subscription Price, as defined in the Prospectus, one
share of Common Stock for each Right (the "Primary Subscription Right"); and
(2) With respect to Record Date Shareholders and any of their
transferees, the right to subscribe for additional shares of Common Stock,
subject to the availability of such shares and to the allotment of such shares
as may be available among Record Date Shareholders who exercise Over-
Subscription Privilege Rights on the basis specified in the Prospectus;
provided, however, that such Record Date Shareholder has exercised all Basic
Subscription Rights issued to him or her.
3. Rights and Issuance of Subscription Certificates.
(a) Each Subscription Certificate shall evidence the Rights of the
Shareholder therein named to purchase Common Stock upon the terms and conditions
therein and herein set forth.
(b) Upon the written advice of the Company, signed by any of its duly
authorized officers, as to the Record Date, the Agent shall, from a list of the
Company Shareholders as of the Record Date to be prepared by the Agent in its
capacity as Transfer Agent of the Company, prepare and record Subscription
Certificates in the names of the Shareholders, setting forth the number of
Rights to subscribe for the Company's Common Stock calculated on the basis of
____ Rights for one share of Common Stock recorded on the books in the name of
each such Shareholder as of the Record Date. The number of Rights that are
issued to Record Date Shareholders will be rounded up or down, by the Agent, to
the nearest whole number of full Rights as fractional Rights will not be issued,
with such adjustments as may be necessary to ensure that if all Rights are
exercised, the Company will receive gross proceeds of $75 million. Each
Subscription Certificate shall be dated as of the Record Date and shall be
executed manually or by facsimile signature of a duly authorized officer of the
Subscription Agent. Upon the written advice, signed as aforesaid, as to the
effective date of the Registration Statement, the Agent shall promptly
countersign and deliver the Subscription Certificates, together with a copy of
the Prospectus, instruction letter and any other document as the Company deems
necessary or appropriate, to all Shareholders with record addresses in the
United States (including its territories and possessions and the District of
Columbia). Delivery shall be by first class mail (without registration or
insurance), except for those Shareholders having a registered address outside
the United States (who will only receive copies of the Prospectus, instruction
letter and other documents as the Company deems necessary or appropriate, if
any), delivery shall be by air mail (without registration or insurance) and by
first class mail (without registration or insurance) to those Shareholders
having APO or FPO addresses. No Subscription Certificate shall be valid for any
purpose unless so executed.
(c) The Agent will mail a copy of the Prospectus, instruction letter, a
special notice and other documents as the Company deems necessary or
appropriate, if any, but not Subscription Certificates to Record Date
Shareholders whose record addresses are outside the United States (including its
territories and possessions and the District of Columbia ) ("Foreign Record Date
Shareholders"). The Rights to which such Subscription Certificates relate will
be held by the Agent for such Foreign Record Date Shareholders' accounts until
instructions are received to exercise, sell or transfer the Rights.
4. Exercise.
(a) Record Date Shareholders may acquire shares of Common Stock on Basic
Subscription Privilege and pursuant to the Over-Subscription Privilege by
delivery to the Agent as specified in the Prospectus of (i) the Subscription
Certificate with respect thereto, duly executed by such Shareholder in
accordance with and as provided by the terms and conditions of the Subscription
Certificate, together with (ii)$6.00 per share, of as disclosed in the
Prospectus, for each share of Common Stock subscribed for by exercise of such
Rights, in U.S. dollars by check or bank draft drawn on a bank in the United
States or postal, telegraphic or express money order, in each case payable to
the order of the Agent.
(b) Rights may be exercised at any time after the date of issuance of the
Subscription Certificates with respect thereto but no later than 5:00 P.M.
Eastern Daylight Savings time on such date as the Company shall designate to the
Agent in writing (the "Expiration Date"). For the purpose of determining the
time of the exercise of any Rights, delivery of any material to the Agent shall
be deemed to occur when such materials are received at the Corporate Actions
Division of the Agent specified in the Prospectus.
(c) Notwithstanding the provisions of Section 4 (a) and 4 (b) regarding
delivery of an executed Subscription Certificate to the Agent prior to 5:00 P.M.
Eastern Daylight Savings time on the Expiration Date, if prior to such time the
Agent receives a Notice of Guaranteed Delivery by facsimile (telecopy) or
otherwise from a bank, a trust company or a member of a national securities
exchange or the National Association of Securities Dealers, Inc. in a properly
completed and executed Subscription Certificate, then such exercise of Basic
Subscription Privilege Rights and Over-Subscription Privilege Rights shall be
regarded as timely, subject, however, to receipt of the duly executed
Subscription
2
Certificate within three Business Days (as defined below) after the Expiration
Date (the "Guarantee Period") and full payment for their Common Stock on or
prior to the Expiration Date. For the purposes of the Prospectus and this
Agreement, "Business Day" shall mean any day on which trading is conducted on
the New York Stock Exchange.
(d) As soon as practicable after the expiration of the Guarantee Period
(the "Confirmation Date"), the Agent shall send to each exercising shareholder
(or, if shares of Common Stock on the Record Date are held by Cede & Co. or any
other depository or nominee, to Cede & Co. or such other depository or nominee)
a confirmation showing the number of shares of Common Stock acquired pursuant to
the Basic Subscription Privilege, and, if applicable, the Over-Subscription
Privilege, the per share and total purchase price for such shares and any excess
to be refunded by the Company to such shareholder in the form of a check and
stub, along with a letter explaining the allocation of shares of Common Stock
pursuant to the Over-Subscription Privilege.
(e) Any excess payment to be refunded by the Company to a shareholder will
be mailed by the Agent within ten Business Days after the Confirmation Date. The
Agent will not issue or deliver certificates for shares subscribed for unless
payment in full therefore has been received, including collection of checks and
payment pursuant to notices of guaranteed delivery.
5. Validity of Subscriptions. Irregular subscriptions not otherwise covered
by specific instructions herein shall be submitted to an appropriate officer of
the Company and handled in accordance with his or her instructions. Such
instructions will be documented by the Agent indicating the instructing officer
and the date thereof.
6. Over-Subscription. If, after allocation of shares of Common Stock to
Record Date Shareholders, there remain unexercised Rights, then the Agent shall
allot the shares issuable upon exercise of such unexercised Rights (the
"Remaining Shares") to shareholders who have exercised all the Rights initially
issued to them and who wish to acquire more than the number of shares for which
the Rights issued to them are exercisable. Shares subscribed for pursuant to
the Over-Subscription Privilege will be allocated in the amounts of such over-
subscriptions. If the number of shares for which the Over-Subscription
Privilege has been exercised is greater than the Remaining Shares, the Agent
shall allocate the Remaining Shares to Record Date Shareholders exercising Over-
Subscription Privilege based on the total number of shares of Common Stock
subscribed for. The percentage of Remaining Shares each over-subscribing Record
Date Shareholder will be rounded up or down to result in delivery of whole
shares of Common Stock with such adjustments as may be necessary to ensure that
if all Rights are exercised, the Company will receive gross proceeds of $75
million. The Agent shall advise the Company immediately upon the completion of
the allocation set forth above as to the total number of shares subscribed and
distributable.
7. Delivery of Certificates. The Agent will deliver (i) certificates
representing those shares of Common Stock purchased pursuant to exercise of
Basic Subscription Rights and (ii) certificates representing those shares
purchased pursuant to the exercise of the Over-Subscription Privilege as soon as
practicable after the Expiration Date and after all allocations have been
effected.
8. Holding Proceeds of Rights Offering
(a) All proceeds received by the Agent from Shareholders in respect of the
exercise of Rights shall be held by the Agent, on behalf of the Company, in a
segregated account (the "Account"). Interest shall accrue to the Company on
funds held in the Account pending disbursement in the manner described in
Section 4(e) above.
(b) The Agent shall deliver all proceeds received in respect of the
exercise of Rights to the Company as promptly as practicable, but in no event
later than two Business Days after the Confirmation
3
Date. Proceeds held in respect of excess payments (including interest earned
thereon) in connection with the exercise of the Rights shall belong to the
Company.
9. Reports daily, during the period commencing on September __, 1999, until
the Expiration Date, the Agent will report by telephone or telecopier (by 2:00
p.m., Eastern Daylight Savings time), confirmed by letter, to an Officer of the
Company, data regarding Rights exercised, the total number of shares of Common
Stock subscribed for, and payments received therefor, bringing forward the
figures from the previous day's report in each case so as to show the cumulative
totals and any such other information as may be mutually determined by the
Company and the Agent.
10. Loss or Mutilation. If any Subscription Certificate is lost, stolen,
mutilated or destroyed, the Agent may, on such terms which will indemnify and
protect the Company and the Agent as the Agent may in its discretion impose
(which shall, in the case of a mutilated Subscription Certificate include the
surrender and cancellation thereof), issue a new Subscription Certificate of
like denomination in substitution for the Subscription Certificate so lost,
stolen, mutilated or destroyed.
11. Compensation for Services. Upon completion of the offer the Company agrees
to pay to the Agent compensation for its services as such in accordance with its
Fee Schedule to act as Agent, dated ________, 1999, and set forth attached
hereto as Exhibit A. The Company further agrees that it will reimburse the
Agent for its reasonable out-of-pocket expenses incurred in the performance of
its duties as such.
12. Instructions and Indemnification. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions:
(a) The Agent shall be entitled to rely upon any instructions or directions
furnished to it in writing by an appropriate officer of the Company, whether in
conformity with the provisions of this Agreement or constituting a modification
hereof or a supplement hereto. Without limiting the generality of the foregoing
or any other provision of this Agreement, the Agent, in connection with its
duties hereunder, shall not be under any duty or obligation to inquire into the
validity or invalidity or authority or lack thereof of any instruction or
direction from an officer of the Company in writing which conforms to the
applicable requirements of this Agreement and which the Agent reasonably
believes to be genuine and shall not be liable for any delays, errors or loss of
data occurring by reason of circumstances beyond the Agent's control.
(b) The Company will indemnify the Agent and its nominees against, and hold
it harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Agent relating to this Agreement by an appropriate
officer of the Company, except for any liability or expense which shall arise
out of the gross negligence, bad faith or willful misconduct of the Agent or
such nominees.
13. Changes in Subscription Certificate. The Agent may, without the consent or
concurrence of the Shareholders in whose names Subscription Certificates are
registered, by supplemental agreement or otherwise, concur with the Company in
making any changes or corrections in a Subscription Certificate that it shall
have been advised by counsel (who may be counsel for the Company) is appropriate
to cure any ambiguity or to correct any defective or inconsistent provision or
clerical omission or mistake or manifest error therein or herein contained, and
which shall not be inconsistent with the provision of the Subscription
Certificate except insofar as any such change may confer additional rights upon
the Shareholders.
4
14. Assignment, Delegation.
(a) Except as provided in Section 14(c) below, neither this Agreement nor
any rights or obligations hereunder may be assigned or delegated by either party
without the written consent of the other party.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns. Nothing in this
Agreement is intended or shall be construed to confer upon any other person any
right, remedy or claim or to impose upon any other person any duty, liability or
obligation.
(c) The Agent may, without further consent on the part of the Company, (i)
subcontract for the performance hereof with Boston EquiServe Limited
Partnership or (ii) subcontract with other subcontractors for systems,
processing, and telephone and mailing services as may be required from time
to time; provided, however, that the Agent shall be as fully responsible to
the Company for the acts and omissions of any subcontractor as it is for
its own acts and omissions.
15. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the law of the Commonwealth of Massachusetts.
16. Third Party Beneficiaries. This Agreement does not constitute an agreement
for a partnership or joint venture between the Agent and the Company. Neither
party shall make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
17. Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other cause reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes. Performance under this Agreement shall resume when
the affected party or parties are able to perform substantially that party's
duties.
18. Consequential Damages. Neither party to this Agreement shall be liable to
the other party for any consequential, indirect, special or incidental damages
under any provisions of this Agreement or for any consequential, indirect,
special or incidental damages arising out of any act or failure to act hereunder
even if that party has been advised of or has foreseen the possibility of such
damages.
19. Severability. If any provision of this Agreement shall be held invalid,
unlawful, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired.
20. Counterparts. This Agreement may be executed in one or more original or
facsimile counterparts, each of which shall be deemed an original and all of
which together shall be considered one and the same agreement.
21. Captions. The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify, amplify, alter
or give full notice of the provisions hereof.
22. Facsimile Signatures. Any facsimile signature of any party hereto shall
constitute a legal, valid and binding execution hereof by such party.
23. Confidentiality. The Agent and the Company agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement including the fees for services set forth in the attached schedule
shall
5
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law (including the filing of this Agreement as an
exhibit to the Registration Statement).
24. Term. This Agreement shall remain in effect until terminated on _______
__, 1999(the "Termination Date") or, prior to the Termination Date, upon 30
days' written notice by either party to the other. Upon termination of the
Agreement, the Exchange Agent shall retain all canceled Certificates and related
documentation as required by applicable law. All confidentiality provisions
herein shall survive the Termination Date until such time that such confidential
information is no longer confidential.
25. Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly authorized, as of the day
and year first above written.
BANKBOSTON, N.A. SAMSONITE CORPORATION
______________________________ _______________________________________
Signature Signature
______________________________ _______________________________________
Title Title
______________________________ _______________________________________
Date Date
6