EXHIBIT 10.31
INDEMNIFICATION AGREEMENT
(DIRECTOR)
THIS 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 organized under the laws of the Grand Duchy of
Luxembourg (the "Cronos"), and S. XXXXXXXX XXXXXX ("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, 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
indemnification of the officers and directors of Cronos 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
WHEREAS, it is deemed desirable and in the best interests of
Cronos to confirm the indemnification obligations of Cronos by written agreement
with each director of Cronos; and
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WHEREAS, Indemnitee was appointed as a director of Cronos on
October 5, 1999, and was elected to the Board of Directors of Cronos at the 1999
annual meeting of shareholders of Cronos, held on January 13, 2000;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, Cronos and Indemnitee do hereby covenant and agree
as follows:
1. Services by Indemnitee.
1.1 Indemnitee currently serves as a director of Cronos.
1.2 In consideration of the continued rendition of services by
Indemnitee, the Company 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 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 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
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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
3.1 No indemnification shall be provided an 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,
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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 an 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 an 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, 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,
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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 if Indemnitee is
resident in the United States. Judgment upon any arbitration award may be
entered in any 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.
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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 an award in arbitration to
enforce his rights under, or to recover damages for breach 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
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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 (other than Indemnitee), 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.
7. Definitions.
7.1 "Change in Control" means a change in control of the Company
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 the Company is then subject to such reporting
requirement;
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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 the Company
representing 20% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two thirds of the
members (other than Indemnitee) of the Board of Directors of the Company in
office immediately prior to such person attaining such percentage interest; (ii)
the Company 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 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 the Company (including for this purpose any new director whose election or
nomination for election by the Company's stockholders 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 of the Company. Notwithstanding the
foregoing, no "Change in Control" shall be deemed to have occurred if any Person
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 becomes a beneficial owner of any
additional common shares of the Company, in which event a Change in Control
shall be deemed to have occurred for the purposes of this Agreement. The Company
and Indemnitee agree that the fact that the "Blavin Parties" (as referred to in
the Company's Proxy Statement, dated April 26, 2002, pages 25-26) are the record
owners of 20.8% of
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the outstanding common shares of the Company shall not be deemed to have
effected a "Change in Control" of the Company unless and until the Blavin
Parties become the beneficial owners of additional common shares of the Company,
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 lndemnitee.
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 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 lndemnitee in any action to determine lndemnitee's rights under this
Agreement.
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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, the Company's articles of incorporation or bylaws, any other
agreement, a vote of stockholders, or otherwise.
8.2 The indemnification provided to the Indemnitee by this
Agreement shall be effective as of the date Indemnitee first served as a
director of the Company and shall continue in full force and effect until the
later of (a) ten (10) years after the date that Indemnitee shall have ceased to
serve as a director 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
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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,
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)
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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/ XXXXXX X. XXXXX
--------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
INDEMNITEE
/s/ S. XXXXXXXX XXXXXX
--------------------------
S. Xxxxxxxx Xxxxxx
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