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Exhibit 10.23
Stock Appreciation Rights Agreement between the Company and S. Xxxxxxxx Xxxxxx
and each other party.
STOCK APPRECIATION RIGHTS AGREEMENT
THIS STOCK APPRECATION RIGHTS AGREEMENT (the "Agreement"), made and
entered into as of this 13th day of October, 1999, by and between The Cronos
Group, a limited liability company organized and existing under the laws of
Luxembourg (the "Company") and S. Xxxxxxxx Xxxxxx ("Grantee");
W I T N E S S T H:
WHEREAS, at its meeting held on August 4, 1999, in New York, the Board of
Directors ("Board") of the Company approved the Non-Employee Directors' Equity
Plan (the "Directors' Equity Plan") and directed that the Directors' Equity
Plan be submitted to the shareholders of the Company for their approval at the
1999 annual meeting; and
WHEREAS, pursuant to the Directors' Equity Plan, each non-employee
director of the Company was to receive the grant of an option (the "Stock
Option") to acquire 15,000 shares of Common Stock of the Company; and
WHEREAS, the annual meeting of shareholders of the Company was scheduled
to be held on October 26, 1999, in Luxembourg; and
WHEREAS, on September 21, 1999, Interpool, Inc. ("Interpool") a competitor
of the Company, transmitted to the Company its proposal, subject to numerous
conditions, to acquire the Company by merger with Interpool's 50%-owned
subsidiary, Container Applications International, Inc., for $5.00 per share in
cash for all of the outstanding shares of Common Stock of the Company; and
WHEREAS, by letter dated October 8, 1999, the Company advised Interpool
that the Board of the Company had unanimously rejected the Interpool proposal
as inadequate and as not in the best interest of the Company or its
shareholders; and
WHEREAS, the Board has engaged First Union Securities, Inc. ("First
Union") to explore the strategic alternatives available to the Company in light
of the Interpool proposal; and
WHEREAS, the non-employee directors of the Company have, in light of the
Interpool proposal, the engagement of First Union, and the
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postponement of the 1999 annual meeting, been required to devote a substantial
amount of time and effort to the business of the Company; and
WHEREAS, to provide an incentive to the non-employee directors of the
Company to devote their time and effort to the business of the Company, to
better align the interests of non-employee directors of the Company with the
shareholders of the Company, and because the grant of the Stock Option to
Grantee has been deferred, the Board has resolved to award Grantee stock
appreciation rights in lieu of the Stock Option on the terms and conditions set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall be defined as
follows:
"Award" refers to the number of Share Units granted to Grantee.
"Award Payment" refers to the cash payment, before withholding, to be made
by the Company to Grantee for Exercised Share Units pursuant to the provisions
of Section 6 hereof.
"Board" refers to the Board of Directors of the Company.
"Cause" refers (i) to the willful non-performance of, or willful
misconduct in the performance of, Grantee's duties to the Company, and/or
(ii) to other willful misconduct constituting moral turpitude.
"Change in Control" refers to:
(a) The acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended) of 20% or more of the Common Stock then outstanding, but shall not
include any such acquisition by:
(i) The Company;
(ii) Any Subsidiary of the Company;
(iii) Any employee benefit plan of the Company or of any Subsidiary of the
Company;
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(iv) Any Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan;
(v) Any Person who becomes the beneficial owner of 20% or more of the
shares of Common Stock then outstanding as a result of a reduction in the number
of shares of Common Stock outstanding due to the repurchase of shares of Common
Stock by the Company unless and until such Person, after becoming aware that
such Person has become the beneficial owner of 20% or more of the then
outstanding shares of Common Stock, acquires beneficial ownership of additional
shares of Common Stock representing 1% or more of the shares of Common Stock
then outstanding, whereupon a Change in Control shall be deemed to have
occurred; or
(vi) The situation where individuals who, as of the date that this
Agreement is approved by the Board, and subsequently elected members of the
Board whose election is approved or recommended by at least a majority of such
current Board members or their successors whose election was so approved or
recommended (other than any subsequently elected Board members whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board), cease for any reason to constitute at least a majority
of the Board.
"Committee" refers to the Compensation Committee of the Board, any
successor committee thereto or any other committee appointed by the Board to
supervise this Agreement.
"Common Stock" refers to the Common Stock of the Company, par value $2 per
share, or such other class or kind of shares or other securities as may be
applicable under Section 8 hereof.
"Company" refers to The Cronos Group, a Luxembourg holding company, or any
successor to substantially all its business. For purposes of this Agreement,
all references to the "Company," where this Agreement calls for a payment to
Grantee, shall refer to the then Subsidiary of the Company on whose Board of
Directors Grantee sits and, if Grantee sits on the Board of the Cronos Group
and one or more Subsidiaries, then "Company" refers to the Cronos Group.
"Date of Grant" refers to October 13, 1999.
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"Designated Beneficiary" refers to the Person designated, in accordance
with Section 12 hereof, by Grantee to receive payment for Grantee's Share
Units.
"Exercise Date" refers to the date of receipt by the Company of an
Exercise Notice or, if such date is not a business day, then the first business
day occurring after the date of receipt of the Exercise Notice.
"Exercise Notice" refers to a notice substantially in form of Exhibit A
hereto.
"Exercised Share Units" refers to the number of Share Units submitted for
payment by Grantee or an Exercising Party pursuant to Section 5 hereof.
"Exercising Party" refers to the Designated Beneficiary or, if there is no
Designated Beneficiary, to the executor, administrator, or other Person or
Persons who acquire Share Units from Grantee by will or by the laws of descent
and distribution.
"Fair Market Value" refers to the closing sales price of the Common Stock
as reported on the NASDAQ National Market on the applicable Exercise Date or,
if there were no sales on such Exercise Date, the average of the highest and
the lowest quoted selling prices on said market for the preceding business day
on which sales of Common Stock did occur.
"Xxxxx Xxxxx" refers to $4.094, the closing price of a share of Common
Stock of the Company, as reported on NASDAQ for August 4, 1999.
"Payment Date" refers to the date on which Grantee first becomes entitled
to receive payment for all or any portion of the Share Units as provided for in
Section 7 hereof.
"Permanent Disability" refers to a physical or mental impairment rendering
Guarantee substantially unable to function as a director of the Company or a
Subsidiary, as the case may be, for any period of six consecutive months. Any
dispute as to whether Grantee is subject to a Permanent Disability shall be
resolved by a physician mutually acceptable to Grantee and the Committee,
whose decision shall be final and binding upon Grantee and the Company.
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"Person" refers to any individual, firm, corporation, limited liability
company, partnership, or other entity.
"Share Unit Account" refers to the account maintained by the Company with
respect to the Award made to Grantee pursuant to Section 3 hereof.
"Share Unit" refers to the equivalent of one share of Common Stock.
"Subsidiary" refers to (i) a corporation or other entity with respect to
which the Company, directly or indirectly, has the power, whether through the
ownership of voting securities, by contract or otherwise, to elect at least a
majority of the members of such corporation's board of directors or analogous
governing body, or (ii) any other corporation or other entity in which the
Company, directly or indirectly, has an equity or similar interest and which
the Committee designates as a Subsidiary for purposes of the Plan.
2. GRANT OF SHARE UNITS
The Company hereby grants to Grantee, effective the Date of Grant, Fifteen
Thousand (15,000) Share Units. The grant of the Share Units to Grantee
entitles Grantee or an Exercising Party, as the case may be, to receive cash
payments from the Company in amounts and on the terms and conditions
hereinafter set forth.
3. SHARE UNIT ACCOUNT
The Company shall record in a separate account (the "Share Unit Account")
the number of Share Units granted to Grantee. The Company shall debit
Grantee's Share Unit Account from time-to-time with all Exercised Share Units,
effective the Exercise Date of such Exercised Share Units, and shall credit or
debit, as appropriate, Grantee's Share Unit Account with any adjustments
required pursuant to Section 8 hereof.
4. TIME OF EXERCISE OF AWARD
(a) The Award shall become exercisable over a period of three (3) years,
as follows. Conditional upon Grantee's continuous service on the Board of the
Company or a Subsidiary following the Date of Grant to the relevant "vesting
date" (as hereinafter defined), and subject to the following subsections of
this Section 4, Grantee shall have the right to exercise the Award on each of
the following dates: one-third (1/3) of the Award on the date that is seven
(7) days prior to the scheduled date of the annual meeting of shareholders of
the Company for the year 2000 or the first anniversary of the Date of Grant,
which ever first occurs; one-third (1/3) of the Award on the date that is seven
(7) days prior to the scheduled date of the annual meeting of
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shareholders of the Company for the year 2001 or the second anniversary of the
Date of Grant, which ever first occurs; and one-third (1/3) of the Award on the
date that is seven (7) days prior to the scheduled date of the annual meeting
of shareholders of the Company for the year 2002 or the third anniversary of
the Date of Grant, which ever first occurs. Any portion of the Award that
Grantee has the right to exercise but elects not to exercise shall remain
available for exercise by Grantee under the terms of this Agreement, subject to
the provisions of Section 10 hereof.
(b) Subject to the provisions of subsection (c) below, if Grantee resigns
from the Company or a Subsidiary, then Grantee may exercise the Award, as to
any portion thereof that Grantee has the right to exercise as of the date of
resignation pursuant to the provisions of subsection (a) above, within ninety
(90) days after the date of such resignation. If Grantee does not exercise the
Award within the time specified herein, then the Award and the Share Units
granted thereunder shall lapse and terminate.
(c) If Grantee resigns from the Company or a Subsidiary, or is terminated
as a director, other than for cause, in either such event within twelve (12)
months following a Change in Control, then and in such event the Award shall
become fully exercisable. In such event, Grantee may exercise the Award at any
time within ninety (90) days after the date of such resignation or termination.
If Grantee does not exercise the Award within the time specified herein, then
the Award and the Share Units then in the Share Unit Account shall lapse and
terminate.
(d) If Grantee's service on the Board is terminated by the Company without
Cause, then and in such event the Award shall become fully exercisable. In
such event, Grantee may exercise the Award at any time within ninety (90) days
after the date of such termination. If Grantee does not exercise the Award
within the time specified herein, then the Award and the Share Units then in
the Share Unit Account shall lapse and terminate. The failure of the
shareholders to elect Grantee to the Board of the Company at an annual meeting
of shareholders at which Grantee is up for election shall not be deemed a
termination within the meaning of this subsection (d).
(e) If Grantee's service on the Board is terminated by the Company for
Cause, then and in such event the Award and the Share Units then in the Share
Unit Account, to the extent Grantee has not exercised the Award prior to the
date of such termination, shall lapse and terminate.
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(f) In the event of a merger of the Company with or into another
corporation, or the sale of substantially all of the assets of the Company,
then and in such event the Award shall become fully exercisable. The Board of
Directors shall provide written notification of such proposed transaction to
Grantee (or, in the event of his death, to the Exercising Party) at least
fifteen (15) days prior to such proposed transaction, and the Award and the
Share Units then in the Share Unit Account, to the extent that the Award is not
fully exercised during such fifteen (15)-day period, shall lapse and terminate
immediately prior to such proposed transaction.
(g) In the event of the proposed dissolution or liquidation of the
Company, then and in such event the Award shall become fully exercisable. The
Board of Directors shall provide written notification of such proposed
transaction to Grantee (or, if he is not then living, to the Exercising Party)
within fifteen (15) days prior to such transaction, and the Award and the Share
Units then in the Share Unit Account, to the extent that the Award is not fully
exercised during such fifteen (15)-day period, shall lapse and terminate
immediately prior to such proposed transaction.
(h) In the event that Grantee becomes subject to a Permanent Disability
while sitting on the Board of the Company or a Subsidiary, then and in such
event the Award shall become fully exercisable by Grantee or by his legal
representative at any time within ninety (90) days from the date of
determination that the Grantee is subject to a Permanent Disability. If
Grantee or his legal representative does not exercise the Award within the time
specified herein, then the Award and the Share Units then in the Share Unit
Account shall lapse and terminate.
(i) In the event of the death of Grantee while employed by the Company or
a Subsidiary, then and in such event the Award shall become fully exercisable
by the Exercising Party at any time within ninety (90) days after the date of
Grantee's death. If the Exercising Party does not exercise the Award within
the time specified herein, then the Award and the Share Units then in the Share
Unit Account shall lapse and terminate.
5. METHOD OF EXERCISE
The Award shall be exercised by the delivery of a written Exercise Notice,
in the form included as Exhibit A hereto, by Grantee (or his legal
representative), or in the case of Grantee's death, the Exercising Party, to
the Company at its principal place of business, stating the election to
exercise the Award and the number of Share Units in respect of which the Award
is being exercised (the "Exercised Share Units"). In no event shall the Award
be
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exercised for fewer than 5,000 Share Units or, if less, the total number
of Share Units then remaining in Grantee's Share Unit Account.
6. AWARD PAYMENT
The Award Payment shall be the amount determined as follows:
(i) by multiplying the excess, if any, of the Fair Market Value of a
share of Common Stock of the Company on the Exercise Date over the Xxxxx Xxxxx
by
(ii) the number of Exercised Share Units.
7. PAYMENT FOR EXERCISED SHARE UNITS
Subject to the following subsections of this Section 7, the Award Payment
shall be made by the Company to Grantee (or the Exercising Party, as the case
may be) within ten (10) business days after the Exercise Date. The Company
shall have the right to withhold from the Award Payment such amounts as the
Company deems necessary or appropriate to satisfy any federal, state, local, or
foreign withholding tax requirement, including, but not limited to, income tax,
FICA withholding, and excise tax. Grantee shall be obligated to pay any and
all taxes of any kind which may be imposed on Grantee or result from the Award,
Grantee's rights with respect to the Award, or the exercise of the Award during
the Grantee's lifetime or at death.
8. ADJUSTMENT OF SHARE UNITS UPON CHANGES IN CAPITALIZATION
The number of Share Units covered by this Agreement and the Xxxxx Xxxxx
shall be proportionately adjusted in the event of a subdivision of the
outstanding Common Stock of the Company, a declaration of a dividend payable in
Common Stock of the Company, a declaration of a dividend payable in a form
other than Common Stock of the Company in an amount that has a material effect
on the price of the Common Stock of the Company, a combination or consolidation
of the outstanding Common Stock of the Company (by reclassification or
otherwise) into a lesser number of shares of Common Stock, a recapitalization
of the Company, a spin-off, stock split, reverse stock split, or any other
increase or decrease in the number of issued and outstanding shares of Common
Stock of the Company effected without receipt of consideration by the Company;
provided, however, that the
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conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Except as expressly
provided herein, no issuance by the Company of shares of stock of any class or
securities convertible into shares of stock of any class shall affect, and no
adjustment by reason thereof shall be made with respect to, the number of Share
Units subject to the Award or the Xxxxx Xxxxx.
9. TRANSFER OF SHARE UNITS
Unless sooner terminated pursuant to the provisions of Sections 4 or 10
hereof,
(a) The Award shall be exercisable during Grantee's lifetime only by
Grantee and may not be transferred or assigned;
(b) The Award is transferable by Grantee upon Grantee's death by will or
by the laws of descent and distribution; and
(c) In the event of Grantee's death, the Exercising Party may exercise any
portion of the Award, as permitted by Section 4 hereof, that is exercisable at
the time of Grantee's death and that has not previously been exercised by
Grantee, provided that any such exercise must be made pursuant to the
provisions of Section 5 above.
(d) Other than as explicitly permitted by this Agreement, Grantee's right
to payment for Exercised Share Units shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors of Grantee or the Exercising Party.
10. TERMINATION OF AWARD
To the extent not earlier terminated by exercise in full in accordance
with this Agreement, the Award and the Share Units granted thereunder shall
terminate on the earliest to occur of the following dates:
(a) October 12, 2009; or
(b) As specified in Section 4 hereof.
11. RIGHTS AS SHAREHOLDER
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Neither Grantee nor any Exercising Party will be deemed to be a holder of
any shares of Common Stock or have any rights as a shareholder of the Company
with respect to the Award or the Share Units.
12. DESIGNATION OF BENEFICIARY
Grantee may at any time designate a beneficiary to receive payment of his
Award in the event of his death. Such designation shall be in writing, signed
by Grantee and delivered to the Company. Such designation may be revoked at
any time in writing by Grantee, in which case, a new designation may be made.
13. MODIFICATION, EXTENSION AND RENEWAL
The Board may modify, extend, or renew the Award or accept an exchange of
the Award (to the extent not theretofore exercised) for the granting of a new
stock award in substitution therefor. However, notwithstanding the foregoing
provisions of this Section 13 or any other provision of this Agreement, there
shall be no modification, extension, or renewal of the Award without the
written consent of Grantee which would in any way alter or impair any right of
Grantee with respect to the Award or under this Agreement.
14. NO RIGHT TO RE-ELECTION
Nothing in this Agreement shall be deemed to create any obligation on the
part of the Board to nominate Grantee for re-election by the Company's
shareholders, nor confer upon Grantee the right to remain a member of the Board
of the Company of a Subsidiary for any period of time or at any particular rate
of compensation.
15. UNFUNDED OBLIGATION
It is the intention of the Company and Grantee that the obligation of the
Company to make any Award Payment under this Agreement be unfunded for tax and
all other purposes. Grantee has the status of a general unsecured creditor of
the Company with respect to the making of any Award Payment by the Company to
Grantee. Prior to the making of any Award Payment for any Exercised Share
Units by the Company to Grantee under this Agreement, nothing contained herein
shall give Grantee any rights that are greater than those of a general
unsecured creditor of the Company.
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16. DISPUTE RESOLUTION
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. ("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 JAMS. Should the dispute between the parties
not be successfully mediated by JAMS within 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.
17. NOTICES
(a) 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:
(i) If to Cronos, to: The Cronos Group
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Chief Executive Officer
Fax: (000) 000-0000
Email: xxx@xxxxxx.xxx
(ii) If to Grantee, to: S. Xxxxxxxx Xxxxxx
1285 Avenue of the Americas
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00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xxx.xxx
(b) 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.
(c) All notices, demands, and requests shall be deemed to have been given
on the business day on which it was delivered by hand or commercial messenger
or air courier service to such party, at his or its address specified above,
or, if sent by facsimile or electronic mail, when electronically confirmed.
Any facsimile transmission or electronic mail not sent on a business day, or
not sent during the hours of 8:30 a.m. to 5:00 p.m. on a business day of the
recipient, shall be deemed sent on the next business day.
18. ENTIRE AGREEMENT
This Agreement (with its exhibit) represents the entire agreement of the
parties with respect to the subject matter hereof, and supersedes in their
entirety all prior agreements and undertakings of the parties with respect to
the subject matter hereof, and may not be modified except by means of a writing
signed by a duly authorized representative of the Company and by Grantee. This
Agreement shall be governed by and construed strictly in accordance with its
terms and by the laws of State of California.
19. BINDING AGREEMENT
This Agreement shall be binding on the Company, its successors and
assigns, and Grantee and his executors, administrators, heirs, successors, and
assigns.
20. COUNTERPARTS
This Agreement may be executed in several counterparts, all of which
together shall constitute one agreement binding upon all parties hereto,
notwithstanding that all parties have not signed the same counterpart.
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IN WITNESS WHEREOF, the Company and Grantee have executed this Agreement
as of the day and year first above written.
THE CRONOS GROUP
By /s/ X X Xxxxx
Xxxxxx X. Xxxxx
Chief Executive Officer
And /s/ C Xxxxx
Xxxxxxx Xxxxx
Director & Chair
Compensation Committee
GRANTEE
/s/ X X Xxxxxx
[Signature]
S. Xxxxxxxx Xxxxxx
-----------------------
[Name of Grantee]
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EXHIBIT A
THE CRONOS GROUP
EXERCISE NOTICE
EXERCISE NOTICE
The Cronos Group
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Compensation Committee
Ladies and Gentlemen:
Reference is made to that certain Stock Appreciation Rights Agreement
between the Company and S. Xxxxxxxx Xxxxxx, dated as of October 13, 1999
(hereinafter, the "Agreement"). (All defined terms used herein shall have the
meaning given to them by the Agreement).
Pursuant to the Agreement, the undersigned hereby elects to exercise the
Award on 15,000 Share Units (hereinafter, the "Exercised Share Units").
The undersigned understands that the Company may withhold from the Award
Payment such amounts as it deems to be necessary to satisfy federal, state,
local, or foreign withholding tax requirements, and that the undersigned is
responsible for the payment of taxes of any kind which may be imposed on the
undersigned as a result of the grant or exercise of the Award.
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DATED: _______________________________ EXERCISING PARTY
_______________________________
(name)
_______________________________
(address)
NOTICE OF EXERCISE
ACKNOWLEDGED AND ACCEPTED:
THE CRONOS GROUP
By _______________________________
Its ______________________________
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Schedule to Stock Appreciation Rights Agreement between
the Company and S. Xxxxxxxx Xxxxxx
Pursuant to Instruction 2 to Item 601(a) of Regulation S-K, this Schedule
identifies omitted Stock Appreciation Rights Agreement between the Company and
each of the following parties, which are substantially identical in all
material respects except as to the parties thereto:
1. Stock Appreciation Rights Agreement between the Company and Xxxxxx X.
Xxxxxx, dated as of October 13, 1999;
2. Stock Appreciation Rights Agreement between the Company and Xxxxxxx
Xxxxxx, dated as of October 13, 1999; and
3. Stock Appreciation Rights Agreement between the Company and Xxxxxxx
Xxxxx, dated as of October 13, 1999.
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