EXHIBIT 10.29
AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT
THIS AMENDED AND RESTATED INDEMNIFICATION AGREEMENT (the
"Agreement") is made and entered into this 6th day of November, 2002, by and
between THE CRONOS GROUP, a societe anonyme holding incorporated in Luxembourg
("Cronos"), and XXXXXX X. XXXXX ("Indemnitee"). Certain capitalized terms are
used in this Agreement as specifically defined in Section 7.
W I T N E S S E T H :
WHEREAS, Indemnitee has been employed by Cronos or a
subsidiary of Cronos since the 1981; and
WHEREAS, Cronos and Indemnitee entered into an Indemnification
Agreement, dated as of December 14, 1998 (hereinafter, the "Indemnification
Agreement"); and
WHEREAS, Cronos adopted, as of August 4, 1999, as amended as of June 1, 2001,
indemnification policies and procedures (the "Indemnification Policies"); and
WHEREAS, the Indemnification Policies provide for the indemnification of the
officers and directors of Cronos and Cronos' subsidiaries in accordance with the
terms thereof; and
WHEREAS, the Indemnification Policies contemplate that Cronos may enter into
individual indemnification agreements with the officers and directors of Cronos;
and
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WHEREAS, it is deemed desirable and in the best interests of Cronos to confirm
the indemnification obligations of Cronos by amending and restating the
Indemnification Agreement as permitted by the Indemnification Policies;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, Cronos and Indemnitee do hereby covenant and agree
as follows:
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1. Services by Indemnitee.
1.1 Indemnitee currently serves as the Chief Executive Officer and
Chairman of the Board of Directors of Cronos. Indemnitee also serves as an
officer and/or director of the following additional affiliates of Cronos: Cronos
Containers S.r.L., an Italian corporation; Cronos Containers (Hong Kong)
Limited, a Hong Kong corporation; Cronos Containers Pte Limited, a Singapore
corporation; Cronos Containers N.V., a Netherlands Antilles corporation; Cronos
Equipment (Bermuda) Limited, a Bermuda corporation; Cronos Capital Corp., a
California corporation; Cronos Securities Corp., a California corporation;
Cronos Holdings/Investments (US), Inc., a Delaware corporation; Cronos
Management N.V., a Netherlands Antilles corporation; Cronos Containers (Cayman)
Ltd., a Cayman Islands corporation; and Cronos Finance (Bermuda) Limited, a
Bermuda corporation (said affiliates referred to hereinafter as the
"Affiliates").
1.2 In consideration of the continued employment and rendition of
services by Indemnitee, Cronos shall provide indemnification to Indemnitee on
the terms and conditions set forth herein, with respect to any services rendered
by Indemnitee to the Company. For purposes of this Agreement, the term "Company"
shall refer to Cronos, the Affiliates, and to each company, entity, or
enterprise affiliated with Cronos, with respect to which, at the request of the
Board of Directors of Cronos, Indemnitee serves as a director, officer, or
fiduciary.
2. Indemnification and Advances.
2.1 The Company shall advance all Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding within fifteen days after
the receipt
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by the Company of a request therefor, accompanied or preceded by reasonable
evidence of such Expenses and by an undertaking to repay all Expenses advanced
to the extent Indemnitee shall be adjudicated, or determined pursuant to Section
3.2 or 3.3, to be not entitled to indemnification therefor (which undertaking
shall be accepted by the Company without reference to Indemnitee's financial
ability to repay any such advances).
2.2 Except as specifically provided in Sections 3.1, 3.2 and 3.3,
within 60 days after receipt of a request therefor the Company shall indemnify
Indemnitee to the full extent permitted by law against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any Proceeding or any claim, issue or
matter therein. A request for indemnification shall be accompanied by reasonable
evidence of the amount for which indemnification is requested, and shall
indicate
a choice of Independent Counsel, if any, to make any determination pursuant to
Section 3.3.
2.3 Notwithstanding any other provision of this Agreement,
Indemnitee shall be indemnified against all Expenses attributable to any
Proceeding (or any claim, issue or matter relating thereto) which was
adjudicated or determined by a court or other body of competent jurisdiction or
authority, on the merits or otherwise, in Indemnitee's favor or which was
terminated by dismissal or withdrawal with or without prejudice.
3. Exceptions
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3.1 No indemnification shall be provided to Indemnitee with
respect to any claim, issue or matter to the extent that Indemnitee has been
adjudicated not to have acted in good faith and in a manner which the Indemnitee
believed to be in, or not opposed to, the best interests of the Company and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not create a presumption that the Indemnitee acted in a
manner contrary to that specified herein.
3.2 If a Change in Control has not occurred, no indemnification
shall be provided to Indemnitee to the extent that, within 60 days of the
receipt by the Company of a request for indemnification, Indemnitee has been
determined (after investigation) by (a) the Board of Directors of the Company by
majority vote of a quorum of Disinterested Directors, or (b) if such a quorum is
not obtainable, or if directed by majority vote of a quorum of Disinterested
Directors, Independent Counsel (selected by majority vote of the Disinterested
Directors or, if none, by majority vote of the Board of Directors) in a written
opinion, not to have acted in good faith and in a manner which the Indemnitee
believed to be in, or not opposed to, the best interests of the Company, and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful.
3.3. If a Change in Control has occurred, no indemnification shall
be provided to Indemnitee to the extent that, within 60 days of the receipt by
the Company of a request for indemnification, Indemnitee has been determined
(after investigation) by (a) the Independent Counsel specified by Indemnitee in
the request for indemnification or (b) if no such specification is made, by a
person,
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persons or entity who would be entitled to make such a determination pursuant to
Section 3.2 if a Change in Control had not occurred, not to have acted in good
faith and in a manner which the Indemnitee believed to be in, or not opposed to,
the best interests of the Company and, with respect to any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. A person, persons
or entity making a determination pursuant to this Section 3.3 shall presume that
Indemnitee acted so as to be entitled to indemnification, and the Company shall
have the burden of proof in overcoming that presumption.
3.4 Indemnitee shall cooperate with any person, persons or entity
making an investigation pursuant to Section 3.2 or 3.3 to the extent reasonably
requested. Any costs or expenses (including attorneys' fees and disbursements)
incurred by Indemnitee in so cooperating shall be borne by the Company
(irrespective of the determination as to Indemnitee's entitlement to
indemnification), and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
4. Remedies of Indemnitee
4.1 In the event that (i) a determination is made that Indemnitee
is not entitled to indemnification under this Agreement, (ii) a required
advancement of Expenses is not timely made, or (iii) payment of any required
indemnification is not timely made within the 60-day period prescribed in
Sections 3.2 and 3.3, Indemnitee shall be entitled to seek an award in
arbitration before the International Chamber of Commerce, if Indemnitee is
resident other than in the United States, or before JAMS/Endispute, San
Francisco, California, if Indemnitee is resident in the United States. Judgment
upon any arbitration award may be entered in any
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court having jurisdiction. Any such arbitration shall be conducted in accordance
with the rules and procedures of the arbitral forum. Indemnitee shall commence a
proceeding seeking such an adjudication or an award in arbitration within 270
days following the date on which Indemnitee first has knowledge of his right to
commence such proceeding. The Company shall not oppose Indemnitee's right to
seek any such adjudication or award in arbitration, and the Company shall not
contest the jurisdiction over it of any of the aforesaid arbitral forums in any
proceeding brought by an Indemnitee under this Agreement.
4.2 In the event that a determination shall have been made
pursuant to this Agreement that Indemnitee is not entitled to indemnification,
any such arbitration shall be conducted in all respects de novo, on the merits,
and Indemnitee shall not be prejudiced by reason of such adverse determination.
If a Change in Control shall have occurred, in any such arbitration the Company
shall have the burden of proving that Indemnitee is not entitled to
indemnification or
advancement of Expenses, as the case may be, notwithstanding such adverse
determination.
4.3 The Company shall be precluded from asserting in any
arbitration or judicial proceeding that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate before any
such arbitrator in any such court or that the Company is bound by all the
provisions of this Agreement.
4.4 In the event that Indemnitee seeks a judicial adjudication of
or an award in arbitration to enforce his rights under, or to recover damages
for breach
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of, this Agreement, Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company against, any and all expenses (of the
types described in the definition of Expenses) actually and reasonably incurred
by him in such arbitration, if he prevails therein or if such recovery is
ordered by the arbitrator. If it shall be determined in such arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such arbitration shall be appropriately pro-rated.
5. Security. To the extent requested by the Indemnitee and approved by the
Company's Board of Directors, the Company may at any time and from time to time
provide security to the Indemnitee for the Company's obligations hereunder
through an irrevocable bank letter of credit, funded trust or other collateral.
Any such security, once provided to the Indemnitee, may not be revoked or
released without the prior written consent of Indemnitee.
6. Insurance. To the extent that the Company maintains an insurance policy
or policies providing liability insurance for directors or executive officers of
the Company (or fiduciaries of any other enterprise), Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any director or executive officer
(or fiduciary) under such policy or policies, whether or not Indemnitee is still
a director or executive officer of the Company. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
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7. Definitions.
7.1 "Change in Control" means a change in control of Cronos of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of 1934
(the "Act"), whether or not Cronos is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if (i) any "Person" (as such term is
used in Section 13(d) of the Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly, of securities of
Cronos representing 20% or more of the combined voting power of Cronos' then
outstanding securities without the prior approval of at least two thirds of the
members of the Board of Directors of Cronos in office immediately prior to such
person attaining such percentage interest; (ii) Cronos is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors of Cronos in office
immediately prior to such transaction or event constitute less than a majority
of the Board of Directors thereafter; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of Cronos (including for this purpose any new director
whose election or nomination for election by the Cronos' shareholders was
approved by a vote of at least two thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors. Notwithstanding the
foregoing, no "Change in Control" shall be deemed to have occurred if any Person
becomes the
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"beneficial owner" of 20% or more of the outstanding common shares of Cronos as
a result of a reduction in the number of common shares outstanding due to the
repurchase or reacquisition of common shares by Cronos unless and until such
Person becomes a beneficial owner of any additional common shares of Cronos, in
which event a Change in Control shall be deemed to have occurred for the
purposes of this Agreement. In addition, the fact that the "Blavin Parties" (as
referred to in Cronos' Proxy Statement, dated April 26, 2002, pages 25-26) are
the record owners of 20.8% of the outstanding common shares of Cronos shall not
be deemed to have effected a "Change in Control" of Cronos unless and until the
Blavin Parties become the beneficial owners of additional common shares of
Cronos, in which event a Change in Control shall be deemed to have occurred for
the purposes of this Agreement.
7.2 "Disinterested Director" means a director of the Company who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
7.3 "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the type
customarily incurred in connection with prosecuting, defending, appearing as a
witness in, preparing to prosecute or defend or appear as a witness in, or
investigating a Proceeding.
7.4 "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company
or Indemnitee in any matter material to either such party, or (ii) any other
party to the
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Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
any action to determine Indemnitee's rights under this Agreement.
7.5 "Proceeding" means any pending, threatened or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative in which Indemnitee is or may be
involved as a witness, respondent, or defendant by reason of being, having been
or having agreed to become a director or executive officer of the Company, or,
at the request of the Company, being, having been or having agreed to become a
director, officer or fiduciary of any other entity or enterprise.
8. General.
8.1 The rights provided by this Agreement shall not be exclusive
of any other rights to which Indemnitee may at any time be entitled under
applicable law, Cronos' articles of incorporation or bylaws, any other
agreement, a vote of shareholders, or otherwise.
8.2 The indemnification provided to the Indemnitee by this
Agreement shall be effective as of the date of first service with or employment
by the Company of Indemnitee and shall terminate upon the later of (a) ten (10)
years after the date that Indemnitee shall have ceased to serve as a director or
officer of the Company or as a fiduciary of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which Indemnitee
served at the
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request of the Company; or (b) the final termination of all pending Proceedings
in respect of which Indemnitee is granted rights hereunder and of any proceeding
commenced by Indemnitee relating thereto. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors and administrators.
8.3 In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
8.4 If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and (b) to the
fullest extent possible, the provisions of this Agreement shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
8.5 No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
8.6 Indemnitee agrees promptly to notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment,
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information or other document relating to any Proceeding or matter which may be
subject to indemnification or advancement of Expenses covered hereunder;
provided, however, that the failure to give any such notice shall not disqualify
the Indemnitee from indemnification hereunder.
8.7 All notices, requests, demands and other communications
hereunder shall be in writing and shall have been duly given if (i) actually
received, or (ii) mailed by certified or registered mail, postage prepaid, on
the third business day after the date on which it is so mailed.
8.8 This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the Grand Duchy of Luxembourg.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
THE CRONOS GROUP
By /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
Cronos Group Director
INDEMNITEE
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Chief Executive Officer
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