EMPLOYMENT AGREEMENT James H. Hoppel, Jr.
Exhibit 10.7
Xxxxx X. Xxxxxx, Xx.
EMPLOYMENT AGREEMENT (the “Agreement”) dated May 5, 2006 by and between Chart
Industries, Inc. (the “Company”) and Xxxxx X. Xxxxxx, Xx. (the “Executive”).
The Company desires to employ Executive and to enter into an agreement embodying the terms of such
employment; and
Executive desires to accept such employment and enter into such an agreement.
In consideration of the premises and mutual covenants herein and for other good and valuable
consideration, the parties agree as follows:
1. Term of Employment. Subject to the provisions of Section 8 of this Agreement,
Executive shall be employed by the Company, on the terms and subject to the conditions set forth in
this Agreement, for a constantly renewing one (1) year term, commencing on May 5, 2006, so that the
remaining term of employment under this Agreement shall always be one year (the “Employment
Term”), unless: (a) either party gives written notice to the other that the Employment Term
shall no longer constantly renew (the “Non-Renewal Notice”) in which event the Employment
Term shall expire on the first anniversary of the delivery of such Non-Renewal Notice or (b)
Executive’s employment under this Agreement is earlier terminated in accordance with Section 8 of
this Agreement.
2. Position.
a. During the Employment Term, Executive shall serve as the
Company’s Chief Accounting Officer, Controller and Assistant Treasurer. In such position, Executive
shall have such duties, authority and responsibility as shall be determined from time to time by
the Board of Directors of the Company (the “Board”), the Chief Executive Officer, the
Executive Vice President or the Chief Financial Officer of the Company, which shall not be
inconsistent with the duties, authority and responsibility of his position at a company of similar
size and nature.
b. During the Employment Term, Executive will devote Executive’s full business time and
best efforts to the performance of Executive’s duties hereunder and will not engage in any other
business, profession or occupation for compensation or otherwise which would conflict or interfere
with the rendition of such services either directly or indirectly, without the prior written
consent of the Board; provided that nothing herein shall preclude Executive, subject to the
prior approval of the Board, from accepting appointment to or continue to serve on any board of
directors or trustees of any business corporation or any charitable organization; provided
in each case, and in the aggregate, that such activities do not conflict or interfere with the
performance of Executive’s duties hereunder or conflict with Section 9.
3. Base Salary. During the Employment Term, the Company shall pay Executive a
base salary at the annual rate of $154,000, payable in regular installments in accordance with the
Company’s usual payment practices. Executive shall be entitled to such increases in Executive’s
base salary, if any, as may be determined from time to time in the sole discretion of the Board.
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Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as the
“Base Salary.”
4. Annual Bonus. With respect to the 2006 fiscal year and each full fiscal year
during the Employment Term, Executive shall be eligible to earn an annual bonus award (an
“Annual Bonus”) of up to one hundred and fifty percent (150%) of sixty percent (60%) of the
Executive’s Base Salary (the “Target”) based upon the achievement of EBITDA and working
capital performance targets established by the Board within the first three months of each fiscal
year during the Employment Term. The Annual Bonus, if any, shall be paid to Executive within two
and one-half (2.5) months after the end of the applicable fiscal year.
5. Employee Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company’s employee benefit plans (other than annual bonus and incentive plans)
providing for health, life and disability insurance, retirement, deferred compensation and fringe
benefits, as well as any stock option plans, as in effect from time to time (collectively
“Employee Benefits”), on the same basis as those benefits are generally made available to
other senior executives of the Company.
6. Vacation. During the Employment Term, Executive shall be entitled to three (3)
weeks of paid vacation annually to be taken at such times as chosen by Executive. Notwithstanding
the foregoing, after five (5) years of employment with the Company, Executive shall be entitled to
four (4) weeks of paid vacation annually to be taken at such times as chosen by Executive.
7. Business Expenses and Perquisites.
a. Expenses. During the Employment Term, reasonable business expenses incurred by
Executive in the performance of Executive’s duties hereunder shall be reimbursed by the Company in
accordance with Company policies.
b. Perquisites. During the Employment Term, Executive shall be
eligible for an automobile allowance of up to $800 per month, consistent with the Company’s current
practices.
8. Termination. The Employment Term and Executive’s employment hereunder may be
terminated by either party at any time and for any reason; provided that Executive will be required
to give the Company at least 60 days advance written notice of any resignation of Executive’s
employment. Notwithstanding any other provision of this Agreement, the provisions of this Section 8
shall exclusively govern Executive’s rights upon termination of employment with the Company and its
affiliates.
a. By the Company For Cause or By Executive Resignation Without Good Reason.
(i) The Employment Term and Executive’s employment hereunder may be terminated by the Company for
Cause (as defined below) and shall terminate automatically upon Executive’s resignation without
Good Reason (as defined in Section 8(c)); provided that Executive will be required to give the
Company at least 60 days advance written notice of a resignation without Good Reason.
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(ii) For purposes of this Agreement, “Cause” shall mean the Executive’s (A) willful failure
to perform duties which, if curable, is not cured promptly, or in any event within ten (10) days,
following the first written notice of such failure from the Company, (B) commission of, or plea of
guilty or no contest to a (x) felony or (y) crime involving moral turpitude, (C) willful
malfeasance or misconduct which is demonstrably injurious to the Company or its subsidiaries or
affiliates, (D) material breach of the material terms of this Agreement, including, without
limitation, any non-competition, non-solicitation or confidentiality provisions, (E) commission of
any act of gross negligence, corporate waste, disloyalty or unfaithfulness to the Company which
adversely affects the business of the Company or its subsidiaries or affiliates, or (F) any other
act or course of conduct which will demonstrably have a material adverse effect on the Company, a
subsidiary or affiliate’s business.
(iii) If Executive’s employment is terminated by the Company for Cause, or if Executive resigns
without Good Reason, Executive shall be entitled to receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned, but unpaid, as of the date of termination for the immediately
preceding fiscal year, paid in accordance with Section 4 (except to the extent payment is otherwise
deferred pursuant to any applicable deferred compensation arrangement with the Company);
(C) reimbursement, within 60 days following submission by Executive to the Company of
appropriate supporting documentation, for any unreimbursed business expenses properly incurred by
Executive in accordance with Company policy prior to the date of Executive’s termination; provided
claims for such reimbursement (accompanied by appropriate supporting documentation) are submitted
to the Company within 90 days following the date of Executive’s termination of employment; and
(D) such Employee Benefits, if any, as to which Executive may be entitled under the employee
benefit plans of the Company, including payment for any accrued but unused vacation within 30 days
following the date of Executive’s termination of employment (the amounts described in clauses (A)
through (D) hereof being referred to as the “Accrued Rights”).
Following such termination of Executive’s employment by the Company for Cause or resignation by
Executive without Good Reason, except as set forth in this Section 8(a)(iii), Executive shall have
no further rights to any compensation or any other benefits
under this Agreement.
b. Disability or Death.
(i) The Employment Term and Executive’s employment hereunder shall terminate upon Executive’s death
and may be terminated by the Company if Executive becomes physically or mentally incapacitated and
is therefore unable for a period of six (6) consecutive months or for an aggregate of nine (9)
months in any twenty-four (24) consecutive month period to perform Executive’s duties (such
incapacity is hereinafter referred to as
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“Disability”). Any question as to the existence of the Disability of Executive as to which
Executive and the Company cannot agree shall be determined in writing by a qualified independent
physician mutually acceptable to Executive and the Company. If Executive and the Company cannot
agree as to a qualified independent physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in writing. The determination of
Disability made in writing to the Company and Executive shall be final and conclusive for all
purposes of the Agreement.
(ii) Upon termination of Executive’s employment hereunder for either Disability or death, Executive
or Executive’s estate (as the case may be) shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of any Annual Bonus, if any, that Executive would have been entitled
to receive pursuant to Section 4 hereof for such year based upon the Company’s actual results for
the year of termination and the percentage of the fiscal year that shall have elapsed through the
date of Executive’s termination of employment, payable to Executive pursuant to Section 4 had
Executive’s employment not terminated.
Following Executive’s termination of employment due to death or Disability, except as set forth in
this Section 8(b)(ii), Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
c. By the Company Without Cause or Resignation by Executive for Good Reason.
(i) The Employment Term and Executive’s employment hereunder may be terminated by the Company
without Cause or by Executive’s resignation for Good Reason.
(ii) For purposes of this Agreement, “Good Reason” shall mean, without Executive’s consent,
(i) a substantial diminution in Executive’s position or duties, material adverse change in
reporting lines, or assignment of duties materially inconsistent with his position or (ii) any
reduction in Executive’s base salary and/or material reduction in employee benefits in the
aggregate provided to Executive (excluding any general salary reduction or reduction in employee
benefits similarly affecting substantially all other senior executives of the Company as a result
of a material adverse change in the Company’s prospects or business), in each case which is not
cured within 30 days following the Company’s receipt of written notice from the Executive
describing the event constituting
Good Reason.
(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of
death or Disability) or if Executive resigns for Good Reason, Executive shall be entitled to
receive:
(A) the Accrued Rights;
(B) subject to Executive’s (x) continued compliance with the provisions of Sections 9 and 10
and (y) execution and delivery of a general release of
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claims against the Company and its affiliates in a form reasonably acceptable to the Company,
continued payment of the greater of the current Base Salary or Executive’s highest Base Salary paid
within the Employment Term in accordance with the Company’s usual payment practices, as in effect
on the date of termination of Executive’s employment, until the expiration of the otherwise
remaining portion of the Employment Term determined, for this purpose only, as if such termination
of employment and the Employment Term had not occurred (the “Severance Period”); and
(C) continued coverage under the Company’s group health plans during the Severance Period on the
same basis as active employees of the Company.
Following Executive’s termination of employment by the Company without Cause (other than by reason
of Executive’s death or Disability) or by Executive’s resignation for Good Reason, except as set
forth in this Section 8(c)(iii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement.
d. Expiration of Employment Term.
(i) Election Not to Renew the Employment Term. In the event either party provides the other
with the Non-Renewal Notice pursuant to Section 1, unless Executive’s employment is earlier
terminated pursuant to paragraphs (a), (b) or (c) of this Section 8, the expiration of the
Employment Term and the Executive’s termination of employment hereunder (whether or not Executive
continues as an employee of the Company thereafter) shall be deemed to occur on the close of
business on the first anniversary of the delivery of such Non-Renewal Notice and Executive shall be
entitled to receive the Accrued Rights.
Following such termination of Executive’s employment hereunder, except as set forth in this Section
8(d)(i), Executive shall have no further rights to any compensation or any other benefits under
this Agreement.
(ii) Continued Employment Beyond the Expiration of the Employment Term. Unless the parties otherwise agree in writing, continuation of Executive’s
employment with the Company beyond the expiration of the Employment Term shall be deemed an
employment at-will and shall not be deemed to extend any of the provisions of this Agreement and
Executive’s employment may thereafter be terminated at will by either Executive or the Company;
provided that the provisions of Sections 9, 10 and 11 of this Agreement shall survive any
termination of this Agreement or Executive’s termination of employment hereunder.
e. Notice of Termination. Any purported termination of employment by the Company
or by Executive (other than due to Executive’s death) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 12(i) hereof. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of employment under the
provision so indicated.
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f. Board/Committee Resignation. Upon termination of Executive’s employment for any reason, Executive agrees to resign, as of the date of such termination and to
the extent applicable, from the Board (and any committees thereof) and the Board of Directors (and
any committees thereof) of any of the Company’s affiliates.
9. Non-Competition.
a. Executive acknowledges and recognizes the highly competitive nature of the businesses of
the Company and its affiliates and accordingly agrees as follows:
(1) During the Employment Term and, for a period of one (1) year following the date Executive
ceases to be employed by the Company (the “Restricted Period”), Executive will not, whether
on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership,
joint venture, association, corporation or other business organization, entity or enterprise
whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in
competition with the Company, the business of any client or customer or prospective client or
customer:
| (i) | with whom Executive had personal contact or dealings on behalf of the Company during the one year period preceding Executive’s termination of employment; | ||
| (ii) | with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding the Executive’s termination of employment; or | ||
| (iii) | for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment. |
(2) During the Restricted Period, Executive will not directly or indirectly:
| (i) | engage in (A) the business of manufacturing equipment used in (x) the production, storage and end-use of hydrocarbon and industrial gases business or (y) low temperature and cryogenic applications, (B) any other businesses which the Company or its subsidiaries engage in during the term of Executive’s employment with the Company and (C) any businesses which, as of the date of Executive’s termination of employment, the Company or its subsidiaries both (x) have specific plans to conduct in the future (and as to which Executive is aware of such planning) and (y) have allocated or invested capital as of the date of such termination of employment (a “Competitive Business”); | ||
| (ii) | enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business; | ||
| (iii) | acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or |
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| (iv) | interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and customers, clients, suppliers, partners, members or investors of the Company or its affiliates. |
(3) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or
indirectly own, solely as an investment, securities of any Person engaged in the business of the
Company or its affiliates which are publicly traded on a national or regional stock exchange or
quotation system or on the over-the-counter market if Executive (i) is not a controlling person of,
or a member of a group which controls, such person and (ii) does not, directly or indirectly, own
5% or more of any class of securities of such Person.
(4) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on
behalf of or in conjunction with any Person, directly or indirectly:
| (i) | solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or | ||
| (ii) | hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or within one year prior to or after, the termination of Executive’s employment with the Company. |
(5) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage
to cease to work with the Company or its affiliates any consultant then under contract with the
Company or its affiliates.
b. It is expressly understood and agreed that although Executive and the Company consider
the restrictions contained in this Section 9 to be reasonable, if a final judicial determination is
made by a court of competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive, the provisions of
this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum
time and territory and to such maximum extent as such court may judicially determine or indicate to
be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the other restrictions
contained herein.
10. Confidentiality; Intellectual Property.
a. Confidentiality.
(i) Executive will not at any time (whether during or after Executive’s employment with the
Company) (x) retain or use for the benefit, purposes or account of Executive or any other Person
other than the Company; or (y) disclose, divulge, reveal, communicate, share, transfer or provide
access to any Person outside the Company (other than its professional advisers who are bound by
confidentiality obligations or other than in performing his duties on behalf of the Company
consistent with Company policies and as authorized by the
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Board), any non-public, proprietary or confidential information —including without limitation trade
secrets, know-how, research and development, software, databases, inventions, processes, formulae,
technology, designs and other intellectual property, information concerning finances, investments,
profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,
personnel, compensation, recruiting, training, advertising, sales, marketing, promotions,
government and regulatory activities and approvals — concerning the past, current or future
business, activities and operations of the Company, its subsidiaries or affiliates and/or any third
party that has disclosed or provided any of same to the Company on a confidential basis
(“Confidential Information”) without the prior written authorization of the Board.
(ii) “Confidential Information” shall not include any information that is (a) generally known to
the industry or the public other than as a result of Executive’s breach of this covenant or any
breach of other confidentiality obligations by third parties; (b) made legitimately available to
Executive by a third party without breach of any confidentiality obligation; or (c) required by law
to be disclosed; provided that Executive shall give prompt written notice to the Company of
such requirement, disclose no more information than is so required, and cooperate with any attempts
by the Company to obtain a protective order or similar treatment.
(iii) Except as required by law and except to the extent that the Company has disclosed the
existence or contents of this Agreement publicly, Executive will not disclose to anyone, other than
Executive’s immediate family and legal or financial advisors, the existence or contents of this
Agreement; provided that Executive may disclose to any prospective future employer the
provisions of Sections 9 and 10 of this Agreement provided they agree to maintain the
confidentiality of such terms.
(iv) Upon termination of Executive’s employment with the Company for any reason, Executive shall
(x) cease and not thereafter commence use of any Confidential Information or intellectual property
(including without limitation, any patent, invention, copyright, trade secret, trademark, trade
name, logo, domain name or other source indicator) owned or used by the Company, its subsidiaries
or affiliates; (y) immediately
destroy, delete, or return to the Company, at the Company’s option, all originals and copies in any
form or medium (including memoranda, books, papers, plans, computer files, letters and other data)
in Executive’s possession or control (including any of the foregoing stored or located in
Executive’s office, home, laptop or other computer, whether or not Company property) that contain
Confidential Information or otherwise relate to the business of the Company, its affiliates and
subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks
and diaries that do not contain any Confidential Information; and (z) notify and fully cooperate
with the Company regarding the delivery or destruction of any other Confidential Information of
which Executive is or becomes aware.
b. Intellectual Property.
(i) If Executive has created, invented, designed, developed, contributed to or improved any works
of authorship, inventions, intellectual property, materials, documents or other work product
(including without limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) (“Works”), either alone or
with third parties, at any time during Executive’s employment by the Company and
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within the scope of such employment and/or with the use of any of the Company’s resources
(“Company Works”), Executive shall promptly and fully disclose same, to the best of his
knowledge, to the Company and hereby irrevocably assigns, transfers and conveys, to the maximum
extent permitted by applicable law, all rights and intellectual property rights therein (including
rights under patent, industrial property, copyright, trademark, trade secret, unfair competition
and related laws) to the Company to the extent ownership of any such rights does not vest
originally in the Company.
(ii) Executive shall take all reasonably requested actions and execute all reasonably requested
documents (including any licenses or assignments required by a government contract) at the
Company’s expense (but without further remuneration) to assist the Company in validating,
maintaining, protecting, enforcing, perfecting, recording, patenting or registering any of the
Company’s rights in the Company Works.
(iii) Executive shall not improperly use for the benefit of, bring to any
premises of, divulge, disclose, communicate, reveal, transfer or provide access to, or share with
the Company any confidential, proprietary or non-public information or intellectual property
relating to a former employer or other third party without the prior written permission of such
third party. Executive hereby indemnifies, holds harmless and agrees to defend the Company and its
officers, directors, partners, employees, agents and representatives from any breach of the
foregoing covenant. Executive shall comply with all relevant policies and guidelines of the
Company, including regarding the protection of confidential information and intellectual property
and potential conflicts of interest. Executive acknowledges that the Company may amend any such
policies and guidelines from time to time, and that Executive remains at all times bound by their
most current version.
(iv) The provisions of Section 10 shall survive the termination of Executive’s employment for any
reason.
11. Specific Performance. Executive acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of Section 9 or Section
10 would be inadequate and the Company would suffer irreparable damages as a result of such breach
or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to cease making any payments or providing any benefit otherwise required by
this Agreement and obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable remedy which may then
be available.
12. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws
principles thereof.
b. Dispute Resolution. Except as otherwise provided in Section 11 of this
Agreement, any controversy, dispute, or claim arising out of, in connection with, or in relation
to, the interpretation, performance or breach of this Agreement, including, without limitation, the
validity, scope, and enforceability of this section, may at the election of any party,
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be solely and finally settled by arbitration conducted in New York, New York, by and in accordance
with the then existing rules for commercial arbitration of the American Arbitration Association, or
any successor organization and with the Expedited Procedures thereof (collectively, the
“Rules”). Each of the parties hereto agrees that such arbitration shall be conducted by a
single arbitrator selected in accordance with the Rules; provided that such arbitrator shall be
experienced in deciding cases concerning the matter which is the subject of the dispute. Any of the
parties may demand arbitration by written notice to the other and to the Arbitrator set forth in
this Section 12(b) (“Demand for Arbitration”). Each of the parties agrees that if possible,
the award shall be made in writing no more than 30 days following the end of the proceeding. Any
award rendered by the arbitrator(s) shall be final and binding and judgment may be entered on it in
any court of competent jurisdiction. Each of the parties hereto agrees to treat as confidential the
results of any arbitration (including, without limitation, any findings of fact and/or law made by
the arbitrator) and not to disclose such results to any unauthorized person. The parties intend
that this agreement to arbitrate be valid, enforceable and irrevocable. In the event of any
arbitration with regard to this Agreement, each party shall pay its own legal fees and expenses,
provided, however, that the parties agree to share the cost of the Arbitrator’s fees.
c. Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Executive by the Company.
There are no restrictions, agreements, promises, warranties, covenants or undertakings between the
parties with respect to the subject matter herein other than those expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument signed by the
parties hereto.
d. No Waiver. The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive
such party of the right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
e. Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Agreement shall not be affected
thereby.
f. Assignment. This Agreement, and all of Executive’s rights and
duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or
delegation by Executive in violation of the foregoing shall be null and void ab initio and of no
force and effect. This Agreement may be assigned by the Company to a person or entity which is an
affiliate or a successor in interest to substantially all of the business operations of the
Company. The Company will require any person or entity which is an affiliate or a successor in
interest to substantially all of the business operations of the Company to assume all obligations
of the Company under this Agreement.
g. Set Off; No Mitigation. The Company’s obligation to pay
Executive the amounts provided and to make the arrangements provided hereunder shall be subject to
set-off, counterclaim or recoupment of amounts owed by Executive to the Company or
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its affiliates. Executive shall not be required to mitigate the amount of any payment provided for
pursuant to this Agreement by seeking other employment.
h. Successors;
Binding Agreement. This Agreement shall inure to the benefit of and
be binding upon personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
i. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be deemed to have been
duly given when delivered by hand or overnight courier or three days after it has been mailed by
United States registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below in this Agreement, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon
receipt.
If to the Company:
Chart Industries, Inc.
One Infinity Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Executive Vice President, Chief Financial Officer and Treasurer and Vice President — Human Resources
One Infinity Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Executive Vice President, Chief Financial Officer and Treasurer and Vice President — Human Resources
If to Executive:
To the most recent address of Executive set forth in the personnel records of the Company.
j. Executive Representation. Executive hereby represents to the
Company that the execution and delivery of this Agreement by Executive and the Company and the
performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or
otherwise contravene, the terms of any employment agreement or other agreement or policy to which
Executive is a party or otherwise bound.
k. Prior Agreements. This Agreement supercedes all prior
agreements and understandings (including verbal agreements) between Executive and the Company
and/or its affiliates regarding the terms and conditions of Executive’s employment with the Company
and/or its affiliates, except that this Agreement does not supercede any stock option agreement in
existence on the date hereof or that certain Management Stockholder’s Agreement, dated November 23,
2005, to which Executive and the Company are parties (except to the extent expressly stated in such
Management Stockholder’s Agreement).
l. Cooperation. Executive shall provide Executive’s reasonable cooperation in
connection with any action or proceeding (or any appeal from any action or proceeding) which
relates to events occurring during Executive’s employment hereunder. This provision shall survive
any termination of this Agreement.
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m. Withholding
Taxes. The Company may withhold from any
amounts payable under this Agreement such Federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
n. Counterparts. This Agreement may be signed in counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
o. Compliance with Section 409A. Notwithstanding anything herein to the contrary,
(i) if at the time of Executive’s termination of employment with the Company Executive
is a “specified employee” as defined in Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the deferral of the commencement of any payments or benefits
otherwise payable hereunder as a result of such termination of employment is necessary in order to
prevent the imposition of any accelerated or additional tax under Section 409A of the Code, then
the Company will defer the commencement of the payment of any such payments or benefits hereunder
(without any reduction in such payments or benefits ultimately paid or provided to Executive) until
the date that is six months following Executive’s termination of employment with the Company (or
the earliest date as is permitted under Section 409A of the Code) and (ii) if any other payments
of money or other benefits due to Executive hereunder could cause the application of an accelerated
or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred
if deferral will make such payment or other benefits compliant under Section 409A of the Code, or
otherwise such payment or other benefits shall be restructured, to the extent possible, in a
manner, determined by the Board, that does not cause such an accelerated or additional tax or
result in an additional cost to the Company. The Company shall consult with Executive in good faith
regarding the implementation of the provisions of this Section 12(o); provided that neither the
Company nor any of its employees or representatives shall have any liability to Executive with
respect thereto.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
CHART INDUSTRIES, INC.
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XXXXX X. XXXXXX, XX. | |||||
/s/ Xxxxxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxxx
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By:
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Xxxxxxx X. Xxxxx | |
Title:
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Executive Vice President, | |
| Chief Financial Officer and Treasurer |
