EXHIBIT 10.5
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AMENDED AND RESTATED STOCK OPTION AGREEMENT
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THIS AMENDED AND RESTATED AGREEMENT ("Agreement"), dated as of the 1st
day of October, 1997, by and between SAMSONITE CORPORATION, a Delaware
corporation (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Employee").
W I T N E S S E T H :
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WHEREAS, as an essential inducement to the Employee entering into the
Employment Agreement (the "Employment Agreement"), dated as of August 1, 1996,
by and between the Company and the Employee, the Company granted to the Employee
a right to acquire shares of common stock, par value $.01 per share ("Common
Stock"), of the Company according to the terms and conditions contained in a
Stock Option Agreement, dated as of August 1, 1996 (the "Original Agreement")
and to 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; and
WHEREAS, the Employment Agreement is being amended as of October 1,
1997 to amend the Employee's duties and compensation, among other changes;
NOW, THEREFORE, in consideration of the premises and covenants herein
set forth and other good and valuable consideration, the Company and the
Employee hereby agree that the Original Agreement is hereby amended and restated
to read in its entirety as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by
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the Compensation Committee (the "Committee") of the Board of Directors of the
Company on August 1, 1996, and pursuant to the Company's 1995 Stock Option and
Incentive Award Plan (as Amended in 1996) (the "Plan"), the Company, subject to
the terms and conditions of this Agreement, hereby confirms that the Employee
has been granted, effective August 1, 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 100,000 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. The Options shall constitute Nonqualified Stock
Options under the Plan.
2. Exercise Price. The initial exercise price per share (the
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"Exercise Price") for the Options shall be $18.250.
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3. Non-transferability of Options. The Options may not be assigned,
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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, and the Options may be
exercised during the lifetime of the Employee only by him.
4. Term and Exercise of Options. The Options shall remain
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outstanding (subject to the vesting and exercisability provisions provided
herein) during a period of six (6) years beginning on the Date of Grant (the
"Option Term"). One-half (1/2) of Options shall vest on January 31, 1997 and
one-half shall vest on January 31, 1998, so long as the Emplo ▇▇▇ remains
continually employed by the Company from the date hereof through such date of
vesting. Except as otherwise provided in Section 5 hereof, Options that have
vested shall remain exercisable in whole at any time or in part and from time to
time until the earlier to occur of the expiration of the Option Term and the
expiration of one year after the date of the termination of the Employee's
employment with the Company. The Employee shall not have any rights 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 upon the exercise of the Options.
(a) Accelerated Vesting of Options. Notwithstanding any provision
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hereof to the contrary, if a Change of Control (as defined below) occurs at any
time prior to February 1, 1998, then, as of the Change of Control Date (as
defined below), all of the unvested Options shall become vested.
(b) Certain Definitions. As used in this Agreement, the following
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terms shall have the following meanings:
"Change of Control Date." "Change of Control Date" means the date on
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which a Change of Control occurs.
"Change of Control." "Change of Control" means (i) any sale, transfer
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or other conveyance (whether directly, or indirectly 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, transferor other conveyance of all or substantially all of the
Company's assets to any person (or group of affiliated persons) other than to an
Excluded Person. For 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.
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5. Termination. The Employee's rights with respect to the Options
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upon death or the termination of his employment with the Company are as follows:
(a) Cause. If the Employee is terminated from his employment with
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the Company for Cause (as defined in Employment Agreement) in accordance with
Section 5(c) of the Employment Agreement, then all the Options (whether vested
or unvested) shall automatically terminate and be cancelled (without any action
on the part of the Company) on the date upon which Preliminary Notice is given
to the Employee pursuant to Section 5(c) of the Employment Agreement, provided
that the Employee's employment is thereafter terminated in accordance with the
provisions of Section 5(c) of the Employment Agreement.
(b) Disability. If the Employee is terminated from his employment
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with the Company by reason of disability in accordance with Section 5(b) of the
Employment Agreement, then all unvested Options shall automatically terminate
and be cancelled (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.
(c) Death. If the Employee dies while employed by the Company, then
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all unvested Options shall automatically terminate and be cancelled (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) 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 in the Employment Agreement), then all
unvested Options shall automatically terminate and be cancelled (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 (A) the ninetieth day following such date and (B) the expiration of
the Option Term.
(ii) If Employee's employment is terminated (A) other than for a
reason described in paragraphs (a), (b) or (c) above, or (B) by the Employee
validly for Good Reason and pursuant to Section 5(d) of the Employment
Agreement, then, as of the date of such termination, all the Options that have
not become vested on or prior to the date of such termination shall become
vested as of such date. All Options that have vested on or prior to such date
shall remain exercisable until the earliest to occur of (C) the ninetieth day
following such date and (D) the expiration of the Option Term.
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(e) Termination Date. For purposes of Sections 5(a), (b), (d) and
(f) hereof, the date of termination of the Employee's employment shall be the
Date of Termination (as defined in the Employment Agreement).
(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)(i) above, and the Employee dies or becomes
disabled within ninety (90) days after such termination 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 Termination
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 securities that may
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be purchased upon the exercise of the Options and the Exercise Price shall be
subject to adjustment 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 reclassification 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 subdivision 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 successive
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
at the effective date of such subdivision or, if the Company shall take a record
of holders of its Common Stock for the purpose of so subdividing, as at 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 at the effective date of such combination
or, if the Company shall take a record of holders of
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its Common Stock for the purpose of so combining, as at 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 combination 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 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 immediately 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 terms and
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conditions of this Agreement, the Options shall be exercisable by notice (an
"Exercise Notice") and payment to the Company in accordance with the procedure
prescribed herein; provided, that the aggregate Exercise Price with respect to
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any one such exercise shall not be less than $100,000 unless such exercise
represents an exercise of all Options that are vested and exercisable as of the
date of such exercise. 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 right to exercise the Options with respect to
such undelivered shares may be terminated in the sole discretion of the Board or
the Committee.
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(b) Each Exercise Notice shall: (i) state the number of shares in
respect of which they 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 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 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.
(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 Employee so requests in the applicable
Exercise Notice, shall be registered in the name of the Employee and his spouse
jointly, with right of survivorship) but only upon compliance with all the
provisions of this Agreement, and such certificate or certificates shall be
delivered within 10 days after receipt of payment and completion of such
compliance by the Employee; provided, that in the case of clause (iii) of the
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first sentence of Section 7(c), the Company shall not be required to make
delivery of the certificate or certificates 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, as of the date
of exercise, of such fraction of a share. 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
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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 Agreement
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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 to require
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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.
Notwithstanding the foregoing sentence, subject to Section 11 hereof, the
Employee may elect to cause Common Stock issuable upon the exercise of any of
the Options, having a Fair Market Value on the day immediately preceding the
date on which such certificates are delivered equal to the amount of such
withholding obligation, to be withheld by the Company in satisfaction of such
obligation.
10. Approval of Counsel. Any exercise of the Options and the
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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 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.
11. Resale of Common Stock. Upon any sale or transfer of the Common
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Stock purchased upon exercise of the Options, the Employee shall deliver to the
Company an opinion of counsel satisfactory to the Company to the effect that
either (a) the sale of the Common Stock to be so sold or transferred has been
registered under the Securities Act or (b) such Common Stock may then be sold
without registration under the Securities Act and applicable state securities
laws.
The certificates evidencing the shares of Common Stock issued upon
exercise of the Options shall bear a legend to the following effect (unless the
Company requires otherwise):
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THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL
FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
12. Registration Rights. The Company has filed a registration
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statement on Form S-8 registering the Common Stock underlying the Options, in
order to permit the public resale thereof by the Employee. The Company's
obligation to maintain such registration shall apply only to the extent that an
effective registration statement is then required for the public sale by the
Employee of the Common Stock underlying the Options.
13. Notices. For the purposes of this Agreement, notices, demands
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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
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Board of Directors
c/o Corporate Secretary
with a copy to each member of the Committee who is not an officer or an employee
of the Company at the address specified by each such director to which notice of
meetings of the Board of Directors is to be sent 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 to the benefit
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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,
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legal representatives and successors. No other person shall have any rights
under this Agreement.
15. Severability. In the event that any one or more provisions of
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this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and 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 inserted.
16. Entire Agreement. The parties hereto agree that this Agreement
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contains the entire understanding and agreement between them, and supersedes
all prior understandings and agreements between the parties respecting the
subject matter hereof, and that the provisions of this Agreement may not be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the parties hereto. The parties acknowledge and
agree that the Original Agreement is null and void and of no further effect as
of the Effective Date hereof.
17. Waiver. No waiver by either party hereto at any time of any
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breach by the other party hereto 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 and governed in
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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 of any
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terms by reference to another document shall not be affected by the termination
of any agreement set forth in such other document or the invalidity of any
provision thereof.
20. Time Periods. Any action required to be taken under this
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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 a
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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 counterparts,
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each of which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by an authorized officer and the Employee has hereunto set his hand all
as of the day, month and year first above written.
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SAMSONITE CORPORATION Employee:
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇.▇▇▇▇▇▇▇
Title:
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