EXHIBIT 10.18
2001 AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
XXXXX X. XXXXXXX
THIS 2001 AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into effective as of December 1, 2001 (the "Effective Date") by and
between Xxxxx X. Xxxxxxx ("Younger'") and The Cronos Group, a societe anonyme
holding organized and existing under the laws of Luxembourg (the "Company")
(collectively, the "Parties").
R E C I T A L S
WHEREAS, since 1987 Younger has been employed as an officer by the Company
and/or by one or more direct or indirect wholly-owned subsidiaries of the
Company; and
WHEREAS, since March 1997 Younger has served as the Chief Financial Officer of
the Company and as the Chief Financial Officer and/or an executive officer of
one or more subsidiaries of the Company; and
WHEREAS, a subsidiary of the Company, Cronos Containers Limited, a United
Kingdom corporation ("CCL") and Younger entered into an Employment Agreement,
dated as of July 1, 1998 (the "1998 Employment Agreement") and a Severance
Agreement dated as of the same date (the "1998 Severance Agreement"); and
WHEREAS, the Parties amended and restated the 1998 Employment Agreement and
superseded the 1998 Severance Agreement by that certain Amended and Restated
Employment Agreement, effective as of March 24, 2000 (the "2000 Employment
Agreement"); and
WHEREAS, effective August 4, 2001, the Board of Directors of the Company
appointed Younger as the Chief Operating Officer of the Company; and
WHEREAS, the 2000 Employment Agreement has been amended by that certain
Amendment dated as of December 4, 2000 (the "First Amendment") and by that
certain Amendment dated as of June 1, 2001 (the "Second Amendment") (the 2000
Employment Agreement, as amended by the First and Second Amendments thereto, is
referred to hereinafter as the "Prior Employment Agreement"); and
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WHEREAS, the Parties desire to amend and restate the Prior Employment Agreement
to reflect, in an integrated document, the employment agreement between the
Company and Younger; and
WHEREAS, the Parties desire to amend the Prior Employment Agreement to clarify
that the severance benefits payable to Younger include health and group-term
life insurance benefits; and
WHEREAS, the Parties further agree that this Agreement shall govern, in all
respects, the terms of the employment of Younger by the Company.
NOW, THEREFORE, the Parties agree as follows:
1. POSITION
During the term of this Agreement ("Term"), Younger shall be employed by the
Company as its Chief Operating Officer and its Chief Financial Officer and shall
be nominated to the Company's Board of Directors (the "Board") to serve as a
member of the Board. Younger shall also serve as the chief operating and
financial officer and/or director of one or more subsidiaries of the Company,
including CCL, as designated from time to time by the Board and/or by the Chief
Executive Officer of the Company (hereinafter, the "Subsidiaries").
2. TERM
(a) The Term of Younger's employment by the Company commenced as of March 1997
and, subject to the provisions hereof permitting the Company to discharge
Younger, the term of Younger's employment by the Company shall be for a
perpetual two-year term.
(b) Younger shall work exclusively for the Company (which, for the purposes of
this provision, includes the Subsidiaries) during the Term.
3. ANNUAL SALARY
Younger's annual salary for services rendered under this Agreement shall be Two
Hundred Fifty Thousand Dollars ($250,000) (the "Initial Base Salary"), paid in
accordance with the Company's standard payroll practices. Commencing January 1,
2001, Younger's annual salary may be increased, in the discretion of the Board,
but shall not be reduced. In all events, Younger's annual salary for the year
2001, and for each year thereafter during the Term shall be increased, at a
minimum, in accordance with the ratio that the consumer price index compiled and
published by the United States Department of Labor's Bureau of Labor Statistics
for the San Francisco/Oakland Metropolitan area ("CPI") for the year just ended
bears to said figure for the calendar year preceding the year just ended. Such
increased CPI shall be applied to the Initial Base Salary, as previously
increased by the CPI, and not necessarily to the prior year's annual salary.
4. BONUS
(a) For each calendar year that ends during the Term of this Agreement, the
Company shall pay a cash bonus to Younger which shall be in an amount equal to
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up to 50% of Younger's annual salary and shall be calculated on the basis of
performance goals established, in its discretion, by the Compensation Committee
of the Board.
(b) In the event that during the Term, any "Change in Control" (as defined in
Exhibit A hereto) of the Company occurs, Younger shall receive a single sum cash
bonus (the "Transaction Bonus") in a dollar amount which shall be determined and
paid to Younger in accordance with the terms and provisions of Exhibit B
attached hereto. Notwithstanding any contrary provision in this Agreement,
payment of the Transaction Bonus shall be subject to any reduction required by
Section 13 hereof.
5. ALLOCATION OF COMPENSATION AMONG THE COMPANY AND SUBSIDIARIES
For accounting and tax reporting purposes, the annual salary, bonus, and other
compensation and benefits (collectively, "Compensation") payable to Younger
shall be allocated among the Company and the Subsidiaries based upon the
services rendered by Younger to the Company and the Subsidiaries. Younger's
Compensation shall be allocated among the Company and the Subsidiaries in
accordance with allocation procedures developed by the Company's accounting
staff and outside auditors, and approved by the Audit Committee of the Board.
The procedures selected shall be designed to fairly reflect an allocation of
Younger's Compensation among the Company and the Subsidiaries based upon the
services rendered by Younger to the Company and the Subsidiaries, in accordance
with sound accounting practice.
6. GROUP/EXECUTIVE BENEFITS
(a) Except as otherwise specifically provided herein, Younger and his family
shall participate, on terms no less favorable than are provided to other
executive officers of the Company, in any group and/or executive life,
hospitalization or disability insurance plan, health program, pension, profit
sharing, 401(k) and similar benefit plans (qualified, non-qualified and
supplemental) that the Company sponsors for its officers or employees, and in
other fringe benefits, including any automobile allowance or arrangement, club
memberships and dues, and similar programs (collective referred to as the
"Benefits"). All waiting periods for such plans shall be waived, except with
respect to any pension plan where waiver of the applicable waiting period is not
permitted. It is understood that participating on the "same terms" as other
executive officers of the Company means the same rules and/or policies shall
apply, recognizing that the result upon applying them can be affected by
different credited years of service.
(b) Without limiting the generality of the foregoing provisions of this Section
6, the Company shall provide the following specific benefits to Younger:
(i) Health Benefits. Younger, on behalf of himself
and his family, at Company expense, shall be entitled to secure medical care
which is,
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in his sole discretion, of the same quality and convenience they would receive,
and at the same total expense to Younger, as if Younger were an employee of
Cronos Capital Corp. ("CCC"), a U.S. Subsidiary of the Company, were Younger a
participant in CCC's medical, dental and other health-related benefit plans. To
the extent that Younger has unreimbursed medical expenses resulting from medical
treatment for himself or his family, he may submit a statement of such expenses
to the officer of CCC in charge of medical benefits, together with any other
information required by CCC, for reimbursement pursuant to the standards set
forth in this paragraph. The decision of the executive in charge of medical
benefits concerning the amount of reimbursement due Younger shall be final,
unless not made in good faith. The Company shall not be responsible for
consequences or damages flowing from any act or omission by the Company in
providing medical care to Younger or his family. The maximum amount of expense
reimbursement under this paragraph to which Younger is entitled for medical
expenses for himself and his family for any calendar year shall not exceed Pound
Sterling15,000.
(ii) Automobile. For the Company's convenience, and
as a condition to Younger's employment by the Company, Younger shall, to the
extent reasonably possible, use a luxury automobile to be provided and
maintained by the Company. The Company shall also provide, at the Company's
expense, adequate personal injury and property damage insurance covering such
automobile.
(iii) Tax Preparation and Planning. The Company will
pay the fees for outside tax planning and tax return preparation services for
Younger, by recognized experts in such fields, and any fees or expenses incurred
by Younger in connection with any investigation or audit of such returns by any
taxing authority.
(iv) Mitigation Tax for Incremental Taxes. In
recognition of the fact that Younger currently resides in England, the Company
shall reimburse Younger for any additional income taxes payable by him on his
income earned as an officer of the Company or any Subsidiary over the income
taxes that would be payable on such income were Younger a resident of the State
of California. The amount of any such reimbursement shall be confirmed by the
outside auditors of the Company, and shall be payable to Younger on or prior to
August 31st of each year for income earned by Younger for the prior calendar
year.
(v) Vacation. Younger shall be entitled to
twenty-five (25) business days of vacation during each calendar year during the
term of this Agreement and any extensions thereof, prorated for partial years.
Younger may
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carry over to the subsequent year up to five (5) business days of vacation each
year that he does not use.
(iv) Life Insurance. For the term of this Agreement
and any extensions thereof, the Company shall, at its expense, procure and keep
in effect life insurance on the life of Younger, payable to such beneficiaries
as he may from time to time designate, in such amounts as called for by the
Company's current policy with respect to the provision of life insurance to
senior executives of the Company.
(v) Moving and Housing Allowance. In recognition of
the fact that Younger relocated to England to render services to the Company,
the Company agrees to reimburse Younger should his employment by the Company be
terminated, for any reason, for all moving or relocation costs reasonably
incurred by him and his family in relocating after any such termination to the
United States. Such moving and relocation costs may include, without limitation,
transportation costs, living expenses while Younger finds accommodations in the
United States, the costs of moving furniture and personal belongings, and any
other similar costs and expenses. Any such costs and expenses shall be paid
within ten (10) days of Younger's submission of invoices setting forth such
costs and expenses.
7. EQUITY BASED INCENTIVE COMPENSATION
(a) The Company currently has in place an incentive stock option plan pursuant
to the provisions of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") (hereinafter, the "Option Plan"). The Company agrees that
Younger, as the Chief Operating and Financial Officer of the Company, shall
participate in the Option Plan, at the time or times and consistent with the
terms and vesting rules generally applicable to other senior executives of the
Company under the Option Plan.
(b) If there is a generally applicable award of options or restricted shares to
senior executives of the Company other than an award of options under the Option
Plan, Younger shall participate in such award(s) on terms consistent with the
Company's then-current practices with respect to awards made to other senior
executives. The Compensation Committee of the Board, in its sole discretion,
shall determine whether and to what extent stock options shall be granted to
Younger under the Option Plan.
(c) In accordance with the terms of the Stock Appreciation Rights Agreement,
dated as of October 13, 1999, between the Company and Younger (the "SAR
Agreement"), the Company granted to Younger 200,000 Share Units (as defined in
the SAR Agreement). All other terms and conditions applicable to the grant of
the Share Units are set forth in the SAR Agreement.
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(d) In the event of an "Equity Change in Control" of the Company, as that term
is defined in Exhibit C hereto, then all of Younger's awards of stock options,
restricted shares or similar equity-based interests which have not already
vested shall immediately vest in full.
8. EVENTS TRIGGERING SEVERANCE BENEFITS
Upon the termination of Younger's employment for any of the reasons described in
subsections (a) - (c) below, he will be entitled to receive the severance
benefits described in Section 9 hereof:
(a) The Company terminates Younger's employment without "Cause."
(b) Younger terminates his employment with the Company "For Good Reason," which
means he terminates it within six (6) months of any event that constitutes "Good
Reason," as defined in subsection (d) below (the phrase "Without Good Reason"
means any termination by Younger other than within six (6) months of an event
constituting Good Reason).
(c) Younger resigns, with or without Good Reason within the thirty (30) day
period commencing one (1) year following an "Equity Change in Control" of the
Company, as that term is defined in Exhibit C hereto.
(d) Definitions:
(i) "Cause" refers to Younger's willful dishonesty
toward, fraud upon, or deliberate injury or attempted injury to, the Company, or
by reason of Younger's willful material breach of this Agreement which has
resulted in a material injury to the Company; provided, however, that Cause
shall not be deemed to exist as a result of any act or omission believed by
Younger, in good faith, to have been in the interest of the Company.
(ii) "Good Reason" for Younger to resign shall exist
if any of the following events occur without his consent: (A) the Company fails
to pay or provide required compensation, after the omission has been called to
the Company's attention and it has been given a reasonable opportunity to cure
the situation; or (B) the Company materially reduces Younger's titles, position,
duties and/or authority; or (C) the Company fails to nominate Younger to serve
on the Board; or (D) the Company materially breaches the terms of this
Agreement, provided, however, Younger has called the breach to the Company's
attention and allowed the Company a reasonable opportunity to cure it.
(iii) "Notice of Termination" shall mean a written
notice which (A) indicates the type of termination under this Agreement (e.g.,
for Cause) and cites the applicable provision of this Agreement, (B) briefly
describes the facts and circumstances claimed to provide a basis for the stated
type of termination, if applicable, and (C) specifies the date of termination
from active service, provided, however, if Younger is eligible for the
Non-Solicitation Payment payable pursuant to Section 10 hereof, the Company
shall provide Younger with thirty (30) days
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advance notice of his date of termination in order to enable him to make a
timely election to receive the Non-Solicitation Payment under Section 10 hereof.
(e) Termination because of Younger's death or disability will not require
payment of the severance benefits described in Section 9, nor will termination
for Cause or Younger' termination of employment Without Good Reason.
(i) For purposes of this Agreement, Younger will be
deemed to be disabled from performing his duties upon the earlier of: (A) the
end of a six (6) consecutive month period during which, for any reason, he has
been unable to substantially perform his usual and customary duties as Chief
Operating and Financial Officer; or (B) the date when it becomes apparent that,
for any reason, he will be unable to substantially perform his usual and
customary duties as Chief Operating and Financial Officer for a period of at
least six (6) consecutive months, provided, however, that in the case of a
physical or mental injury or disease, his disability must be determined in
writing by a reputable physician or psychologist, selected jointly by the Board
and Younger (or his personal representative). The Company shall promptly give
Younger written notice of any determination that Younger is disabled from
working and of any decision by the Board to terminate his employment by reason
thereof. In the event of disability, until the date of termination from active
service, the base salary payable to Younger under Section 3 hereof shall be
reduced dollar-for-dollar by the amount of disability benefits paid to Younger
in accordance with any disability plan, policy or program of the Company.
9. SEVERANCE BENEFITS
If Younger qualifies for severance benefits under the provisions of Section 8
hereof, then the following terms and conditions shall apply:
(a) The Company shall pay Younger all "Accrued Obligations" in a lump sum in
cash within thirty (30) days following his last day of active service; provided,
however, that any portion of the Accrued Obligations which consists of bonus,
deferred compensation, or incentive compensation shall be determined and paid in
accordance with the terms of the relevant plan or provision. "Accrued
Obligations" shall mean, as of the last day of active service, the sum of: (i)
his base salary under Section 3 hereof through the date of termination from
active service, to the extent not already paid; (ii) the amount of any bonus,
incentive compensation, deferred compensation and other cash compensation
accrued by Younger as of his last day of active service, to the extent not
already paid; and (iii) any vacation pay, expense reimbursements and other cash
entitlements accrued by Younger as of his last day of active service, to the
extent not already paid. For purposes of this Section, amounts shall be deemed
to accrue ratably over the period during which they are earned, but no
discretionary compensation shall be
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deemed earned or accrued until it is specifically approved by the Board in
accordance with the applicable plan, program or policy.
(b) Within thirty (30) days after Younger' last day of active service, the
Company shall pay him a lump sum equal to (a) his then-current annual salary and
(b) his then-current annual performance bonus target, or, if not yet
established, his most recent annual bonus payment. The payment to Younger under
this paragraph (b) shall be conditioned upon his compliance with the Company's
policy (as in effect on the Effective Date or on his last day of active service,
whichever is more favorable to Younger) regarding all salaried employees
executing a waiver and release prior to receiving severance compensation.
(c) Within thirty (30) days after Younger's last day of active service, the
Company shall pay him a lump sum that represents a pro-rated annual bonus for
the year of termination. This amount shall be calculated by taking his target
bonus (but excluding, for purposes of this Section, the Compensation Committee's
subjective determination with respect to Younger's overall performance for the
year) or, if such target bonus has not been established, his bonus for the prior
year, for the year of termination and multiplying it times a fraction (i) whose
numerator is the number of days elapsed in the current calendar year from
January 1 of that year through his final day of active service, and (ii) whose
denominator is 365 (e.g., if his last day of active service was February 5, then
this fraction would be .10, calculated as follows: 36 days elapsed in year
divided by 365 days).
(d) All options and restricted stock (including both shares and units) that were
granted before the date of termination but have not yet vested shall immediately
vest upon Younger's final day of active service. All such options, and also
options that previously vested but have not yet been exercised, shall remain
exercisable in accordance with the Option Plan's terms for retirees.
(e) Younger shall be entitled to the automobile allowance and to the same
percentage of Company-paid health and group term-life insurance benefits as were
provided to him and to his family under the plans of the Company as of the date
of termination of Younger's employment for twelve (12) months after the date of
termination or, if Younger makes the election to receive the "Non-Solicitation
Payment" referred to in Section 10 hereof, for twenty-four (24) months after the
date of termination; provided, however, that if, for the aforesaid twelve (12)
or twenty-four (24) month periods, as applicable, the health benefits payable to
Younger under the provisions of Section 6(b)(i) of this Agreement, had Younger
remained an officer of the Company for the applicable period, are greater than
those otherwise payable to Younger under the provisions of this subsection (e),
then Younger shall be entitled to the payment of health benefits pursuant to the
provisions of Section 6(b)(i) hereof. For purposes of Title X of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"),
the date of
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the "qualifying event" for Younger and his covered dependents shall be the date
upon which the coverage provided under this subsection (e) terminates. The
Company may at any time discharge Younger from active service without advance
notice, by providing a Notice of Termination. Nothing in this Agreement shall be
construed as requiring the Company to allow Younger to continue actively
performing the duties of Chief Operating and Financial Officer. Regardless of
the reason for such termination or whether it constitutes a breach by the
Company of this Agreement, Younger's exclusive remedy shall be payment of the
severance benefits described in subsections 9(a) - 9(e) hereof; he shall not be
entitled to reinstatement, nor to any other damages for wrongful termination;
nor, after his termination from active service, shall he be entitled to any
other salary, benefits or other compensation under this Agreement.
Notwithstanding anything to the contrary in the preceding sentences, Younger
shall be entitled to the benefits of the Indemnification Agreement previously
entered into by the Company with Younger and to the benefits of the
Indemnification Policies adopted by the Board of Directors of the Company,
effective August 4, 1999, as amended June 1, 2001.
10. NON-SOLICITATION PAYMENT
In the event that Younger's employment with the Company terminates under
circumstances that would entitle him to the payment of severance under Section
9(b) hereof, then Younger shall be eligible to receive, at his option, an
additional single lump sum payment in a dollar amount equal to 100% of the
annual salary and bonus payable to him under Section 9(b) for a 12-month period
in exchange for his agreement to comply with the non-solicitation and
confidentiality requirements contained in Section 12 hereof (the
"Non-Solicitation Payment"). In order to receive the Non-Solicitation Payment
Younger must, on or before his last day of service with the Company, notify the
Company in writing of his election to receive the Non-Solicitation Payment and,
in connection therewith, Younger must consent in writing to comply with the
requirements of Section 12 for a twenty-four (24) month period. Within thirty
(30) days after Younger's last day of service with the Company, the Company
shall pay Younger the Non-Solicitation Payment; provided, however, that if
Younger violates the provisions of Section 12 hereof at any time during the
twenty-four (24) month period, Younger shall promptly repay to the Company the
Non-Solicitation Payment.
11. OBLIGATIONS OF THE COMPANY UPON TERMINATION BY DEATH, DISABILITY, DISCHARGE
FOR CAUSE, OR RESIGNATION WITHOUT GOOD REASON
In the event this Agreement terminates due to the death or disability of
Younger, or due to a termination for Cause or resignation or Younger's
retirement Without Good Reason, the Company shall pay to Younger all Accrued
Obligations in a lump sum in cash within thirty (30) days after his last day of
active service;
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provided, however, that any portion of the Accrued Obligations which consists of
bonus, deferred compensation, or incentive compensation shall be determined and
paid in accordance with the terms of the relevant plan or provision. Nothing in
this Section shall limit or otherwise adversely affect any rights Younger may
have under applicable law, under any other agreement with the Company including,
without limitation, the Indemnification Agreement, or under any compensation or
benefit plan or policy of the Company.
12. NON-SOLICITATION AND CONFIDENTIALITY
(a) If Younger's employment with the Company is terminated for any reason that
entitles him to receive severance benefits pursuant to Section 9 of this
Agreement, and he elects to receive the Non-Solicitation Payment, then for a
period of twenty-four (24) months immediately following his last day of active
service, Younger shall comply with the requirements of this Section 12.
(i) Non-Solicitation of Business Contacts. Younger
shall not directly or indirectly, solicit or interfere with any relationship
with any customer, supplier, investor, limited partner or deal referral source
of the Company, CCL, or any other affiliate.
(ii) Non-Solicitation of Employees. Younger shall
not directly or indirectly solicit or encourage any Existing Company Employee to
leave the Company or to accept any position with any other company that
currently engages in business with the Company. "Existing Company Employee"
shall mean someone who: (a) became employed by the Company before Younger's
active service terminates, and (b) is still employed by the Company as of the
date when the facilitating act or solicitation takes place, and (c) holds a
manager, director, or officer level position at the Company (or an equivalent
position based on job duties).
(b) Confidentiality. Younger shall not use or disclose to anyone any
Confidential Information regarding the Company and its affiliates. "Confidential
Information" shall include all non-public information Younger acquires by virtue
of his positions with the Company which might be of material value to a
competitor or which might cause any economic loss (directly or via loss of an
opportunity) or substantial embarrassment to the Company or its customers,
lessees, or suppliers if disclosed. Examples of such Confidential Information
include, without limitation, non-public information about the Company's
strategic or marketing plans; its lessees, customers, and suppliers; its
business operations and structure; its pricing policies, or its non-public
financial data.
(c) Remedies. In the event of a breach or threatened breach of any term of this
Section 12, the Company shall be entitled to injunctive relief and/or damages.
The Parties agree that breach of this Section 12 would cause irreparable injury
to the Company for which there would be no adequate remedy at law, due among
other
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reasons to the inherent difficulty of determining the precise causation for loss
of customers or measuring the exact impact of losing key employees or having
Confidential Information disclosed.
(d) Recitals. Younger acknowledges that by virtue of the positions he will hold
with the Company, he will acquire Confidential Information, including, without
limitation, knowledge of operational plans, strategic long-range plans, and
leasing and marketing plans. Younger also acknowledges that by virtue of the
positions he will hold with the Company, he will learn which Existing Company
Employees are critical to the Company's success and will develop relationships
he otherwise would not have had with such employees and with customers,
suppliers, investors, limited partners and deal referral sources.
13. GOLDEN PARACHUTE EXCISE TAX
(a) In the event any payment that is either received by Younger or paid by the
Company on his behalf or any property or any other benefit provided to him under
this Agreement or under any other plan, arrangement or agreement with the
Company or any other person whose payments or benefits are treated as contingent
on a change of ownership or control of the Company (or in the ownership of a
substantial portion of the assets of the Company) or any person affiliated with
the Company or such person (but only if such payment or other benefit is in
connection with Younger's employment by the Company) (collectively, the "Company
Payments"), will be subject to the tax (the "Excise Tax") imposed by Section
4999 of the Code (and any similar tax that may hereafter be imposed by any
taxing authority), the amounts of any Company Payments shall be automatically
reduced to an amount one dollar less than an amount that would subject Younger
to the Excise Tax. The dollar amount of the reduction, if any, to be made with
respect to any Company Payments shall be determined by the Company's Accountants
(as such term is defined in Section 13(b) below) on or before the date such
Company Payments are due and payable to Younger.
(b) For purposes of determining whether any of the Company Payments will be
subject to the Excise Tax and the amount of such Excise Tax, (x) the Company
Payments shall be treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and all "parachute payments" in excess of the "base
amount" (as defined under Code Section 280G(b)(3) of the Code) shall be treated
as subject to the Excise Tax, unless and except to the extent that, in the
opinion of the Company's independent certified public accountants, Deloitte &
Touche LLP, San Francisco (the "Accountants") such Company Payments (in whole or
in part) either do not constitute "parachute payments," represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the "base amount" or are otherwise not
subject to the Excise
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Tax, and (y) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Accountants in accordance with the principles
of Section 280G of the Code. In the event that the Accountants are serving as
accountant or auditor for the individual, entity or group effecting the Change
in Control, Younger may appoint another nationally recognized accounting firm to
make the determinations hereunder (which accounting firm shall then be referred
to as the "Accountants" hereunder). All determinations hereunder shall be made
by the Accountants which shall provide detailed supporting calculations both to
the Company and Younger at such time as it is requested by the Company or
Younger. If the Accountants determine that payments under this Agreement must be
reduced pursuant to this paragraph, they shall furnish Younger with a written
opinion to such effect. The determination of the Accountants shall be binding
upon the Company and Younger.
(c) The Company agrees that it shall be responsible for all charges of the
Accountant.
14. NO DUTY TO MITIGATE
With respect to the severance benefits provided under Section 9 and 10 of this
Agreement, Younger shall not have any duty to mitigate his income loss after a
termination by finding alternative employment nor shall amounts he earns from
other employment be offset against those benefits.
15. TERMINATION BY EXECUTIVE
Younger shall have no personal liability for damages to the Company for
voluntarily terminating his employment at any time, with or Without Good Reason,
so long as he gives at least thirty (30) days prior written notice.
16. SEVERANCE POLICY
Reference is made to the Company's Severance Policy, set forth on Exhibit D
hereto (the "Severance Policy"). The Parties confirm that this Agreement calls
for a severance payment different from that specified in the Severance Policy
and, accordingly, upon the occurrence of any event that entitles Younger to the
payment of severance benefits under this Agreement, the provisions of this
Agreement shall apply and not those of the Severance Policy.
17. ARBITRATION
Should any dispute or controversy arising from or related to this Agreement
arise between the Parties that the Parties are incapable of resolving themselves
through good faith negotiation, then such dispute or controversy shall be
submitted for resolution by J.A.M.S./ENDISPUTE ("JAMS") in San Francisco,
California, or at such other location as is agreed upon by the Parties. Any
dispute shall first be submitted to JAMS for mediation pursuant to the mediation
services provided by
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JAMS. Should the dispute between the Parties not be successfully mediated by
JAMS within ninety (90) days of its submission (subject to any extension agreed
to by the Parties) then and in such event the dispute shall be submitted for
binding arbitration by JAMS pursuant to the rules and practices of JAMS. Unless
agreed to by the Parties, the representative of JAMS who attempts to mediate any
dispute between the Parties shall not be the representative of JAMS who
arbitrates the dispute. Judgment upon any award by the arbitrator(s) may be
entered in any court having jurisdiction thereof. It is agreed that the
prevailing party in any such arbitration or other action arising from or
relating to this Agreement shall be entitled to reimbursement of its or his
reasonable costs and expenses, including attorneys" fees. Each Party consents to
the exercise over it or him of personal jurisdiction by the arbitrator(s)
selected by JAMS to resolve any dispute hereunder.
18. FEES OF NEGOTIATING THIS AGREEMENT
The Company will pay all legal, accounting and other professional fees and
related expenses reasonably incurred by Younger in connection with the
negotiation and preparation of this Agreement.
19. INDEMNIFICATION
To the fullest extent permitted by law and the Company's bylaws (and/or
resolutions or policies adopted by the Board), the Company shall indemnify
Younger (including the advancement of expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys" fees,
incurred by Younger in connection with the defense of any lawsuit or other claim
to which he is made a party by reason of being an officer, director or employee
of the Company or any of its subsidiaries. The Company and Younger have entered
into an Indemnification Agreement for the purpose of implementing the
indemnification commitment of this Section 19.
20. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the heirs and
representatives of Younger and the successors and assigns of the Company. The
Company shall require any successor (whether direct or indirect, by purchase,
merger, reorganization, consolidation, acquisition of property or stock,
liquidation or otherwise) to all or a substantial portion of its assets to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place; provided, however, that Younger shall have the same obligations
to the successor as he would have had to the Company. Regardless of whether such
an agreement is executed, this Agreement shall be binding on any successor of
the Company in
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accordance with the operation of law, and such successor shall be deemed "the
Company" for all purposes under this Agreement.
21. NOTICES
Any notice, demand or communication required or permitted to be given by any
provision of this Agreement shall be deemed properly given if given in writing
or by electronic mail and either delivered through a commercially recognized
overnight delivery service or, if sent by electronic mail or telecopier, to the
party or to an officer of the party to whom the same is directed, addressed as
follows:
(a) If to Cronos, to: The Cronos Group
x/x Xxxxxx Xxxxxxx Xxxx.
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chairman of the Compensation
Committee of the Board of Directors
Fax: (000) 000-0000
(b) If to Younger, to: Xxxxx X. Xxxxxxx
Xxxxxxx Xxx, Xxxxxxxxx Xxxxxxx
Xxxxxxxxx XX00XX
Xxxxxxx
Fax: 000-00-0000-000-000
Any party identified above may change the address to which notices are to be
given hereunder by giving notice to the other party in the manner herein
provided.
22. AMENDMENT OF AGREEMENT
This Agreement may not be amended except by written agreement signed by both
Parties. Only the Board has the authority to authorize such an amendment on
behalf of the Company.
23. SEVERABILITY
Each term of this Agreement is deemed severable, in whole or in part, and if any
provision of this Agreement or its application in any circumstance is found to
be unlawful or invalid, the remaining terms and provisions shall remain in full
force and effect.
24. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York without reference to conflict of law principles.
25. EXECUTION IN COUNTERPARTS
This Agreement may be executed by the Parties hereto in counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
constitute
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one and the same instrument, and all signatures need not appear on any one
counterpart.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
THE CRONOS GROUP
By: /s/ XXXXXXX XXXXX
Xxxxxxx Xxxxx
Chairman of the Compensation
Committee of the Board of Directors
/s/ XXXXX X XXXXXXX
Xxxxx X Xxxxxxx
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EXHIBIT A
DEFINITION OF CHANGE IN CONTROL
For purposes of Section 4(b) of the Agreement, the term "Change in Control"
shall be defined to mean the occurrence of any of the following events:
(i) any "person" as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 ("Act") (other than the Company, any
trustee or other fiduciary holding securities under any employee benefit
plan of the Company, or any company owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as
their ownership of Common Stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the Company's then
outstanding securities;
(ii) the closing of an agreement and plan of merger or consolidation of
the Company with any other corporation is approved, other than a merger
or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no person acquires more than twenty-five percent
(25%) of the combined voting power of the Company's then outstanding
securities shall not constitute a Change in Control of the Company for
purposes of this Exhibit A and the Agreement; or
(iii) the closing of an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets other than
the sale of all or substantially all of the assets of the Company to
person or persons who beneficially own, directly or indirectly, at least
fifty percent (50%) or more of the combined voting power of the
outstanding voting securities of the Company at the time of the sale.
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EXHIBIT B
TRANSACTION BONUS
1. (a) If a Change in Control of the Company, as defined in Exhibit A occurs,
Younger shall receive a Transaction Bonus calculated in accordance with the
provisions of this Exhibit B.
(b) The Company shall pay Younger the full dollar amount of the Transaction
Bonus calculated hereunder no later than thirty (30) days after the date of such
Change in Control, as defined in Exhibit A, has occurred; provided, however,
payment of the Transaction Bonus calculated under this Exhibit B shall be
subject to the reduction, if any, required under Section 13 of the Agreement.
2. The Transaction Bonus shall be calculated as follows:
(a) On the closing date of the Change in Control transaction (the "Transaction
Date"), the dollar amount of the negotiated purchase price per share(2) of the
Company's common stock, net of all transaction costs and expenses (the "Purchase
Price") shall be multiplied by the total number of the Company's outstanding
shares of common stock, determined as of the Transaction Date;
(b) The dollar amount determined in Section 2(a) above shall be multiplied by a
percentage which shall be calculated pursuant to the following formula:
[X - Y]/10 x .25, where "X" equals the Purchase Price and "Y" equals $5.40;
(c) The dollar amount determined in Section 2(b) shall be multiplied by 40% to
arrive at the lump sum cash dollar amount of the Transaction Bonus payable to
Younger.
----------
(2) Based on current outstanding shares, which price shall be adjusted
for stock splits, stock dividends or other recapitalization or redemption, all
as determined in the sole discretion of the Board.
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EXHIBIT C
Definition of Equity Change in Control
(a) For purposes of Section 7(d) and 8(c) under the Agreement, "Equity Change in
Control" shall mean any one of the following events:
(i) Schedule 13D or 13G filing. A Schedule 13D or
13G is filed pursuant to the Exchange Act indicating that any person or group
(as such terms are defined in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) has become the holder of more than twenty
percent (20%) of the outstanding Voting Shares. For purposes of calculating the
percentage of Voting Shares, such person or group shall be deemed the owner of
any Voting Shares which such person or group may acquire upon conversion of
securities or upon the exercise of options, warrants or rights.
(ii) Certain Changes in Directors. As a result of or
in connection with any cash tender offer, merger, or other business combination,
sale of assets or contested election, or combination of the foregoing, the
persons who were directors of the Company just prior to such event shall cease
within one year to constitute a majority of the Board.
(iii) Going Private. The Company's stockholders
approve a definitive agreement providing for a transaction in which the Company
will cease to be an independent publicly-owned corporation.
(iv) Certain Corporate Transactions. The
stockholders of the Company approve a definitive agreement (i) to merge or
consolidate the Company with or into another corporation in which the holders of
Voting Shares immediately before such merger or reorganization will not,
immediately following such merger or reorganization, hold as a group on a
fully-diluted basis both the ability to elect at least a majority of the
directors of the surviving corporation and at least a majority in value of the
surviving corporation's outstanding equity securities, or (ii) to sell or
otherwise dispose of all or substantially all of the assets of the Company.
(v) Tender or Exchange Offer. An Offer is made by a
person or group (as such terms are defined in Section 13(d)(3) of the Exchange
Act) and such Offer has resulted in such person or group holding an aggregate of
twenty percent (20%) or more of the outstanding Voting Shares. For purposes of
this sub-section (v), Voting Shares held by such person or group shall be
calculated in accordance with the last sentence of Section (a)(I) hereof.
(b) Effect of Reduction in Common Shares. Notwithstanding the foregoing
provisions of this Exhibit C, no "Equity Change in Control" shall be deemed to
have occurred if any person or group (as such terms are defined in Section
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13(d)(3) of the Exchange Act) becomes the beneficial owner of 20% or more of the
outstanding common shares of the Company as a result of a reduction in the
number of common shares outstanding due to the repurchase or reacquisition of
common shares by the Company unless and until such person or group becomes a
beneficial owner of any additional common shares of the Company, in which event
an Equity Change in Control shall be deemed to have occurred for the purposes of
Sections 7(d) and 8(c) of the Agreement.
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EXHIBIT D
Company's Severance Policy
8. Any employee terminated by the Company without "cause" shall be paid
severance in an amount equal to the product obtained by multiplying the
employee's monthly salary at the time of termination by the number of years that
the employee has worked for the Company, with a maximum severance payment of one
year's salary;
9. No severance shall be paid to an employee terminated for "cause,"
with cause defined, in the absence of any specific definition in any employment
or severance agreement between the employee and the Company, to mean the
non-performance of, or willful misconduct in the performance of, the employee's
duties to the Company, or to willful misconduct of the employee amounting to
moral turpitude so as to affect his or her ability to adequately perform
services on behalf of the Company;
10. For purposes of the Company's severance policy, the term "Company"
shall refer to the Cronos Group or to the subsidiary of the Cronos Group that is
the employer of the employee for tax purposes;
11. The Company's severance policy shall be subject to any provision of
local law of the country of the employee's principal place of business that may
call for a higher severance payment in the event of a termination of the
employee without cause;
12. The Company's severance policy shall be subject to any provision of
any employment or severance agreement between the Company and the employee that
calls for a severance payment different than that specified in the Company's
severance policy;
13. No severance shall be payable by the Company to any employee who
voluntarily resigns his or her employment with the Company; and
14. Any severance payment called for under the Company's severance
policy shall be paid to the terminated employee in one lump sum, within 30 days
of his or her termination of employment.
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