EXHIBIT 10.3
EXECUTION COPY
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of
July 1, 2002 by and between CHART INDUSTRIES, INC., a Delaware corporation (the
"Company"), and G. XXX X. XXX XXXXXXXX ("Executive").
WHEREAS, the Company desires to employ Executive in the
position of Vice President - Strategic Development of the Company, and the
Executive desires to accept such employment, on the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, Executive is being employed hereunder to assist the
Company in developing and executing the plans of the Company for operational
reorganization, restructuring and asset divestiture (the "Assignment") and the
Assignment is temporary in nature, it being understood that Executive's
employment will cease after the Assignment has been substantially completed.
NOW, THEREFORE, in consideration of the respective covenants
and agreements of the parties herein contained, the Company and Executive agree
as follows:
1. Term of Employment. The Company hereby agrees to employ
Executive, and Executive hereby agrees to serve the Company, on the terms and
conditions set forth herein for the period (the "Employment Period") commencing
as of June 3, 2002 and expiring on the earlier of (a) July 15, 2005, the date of
Executive's 65th birthday, or (b) the 30th calendar day after the Company has
given to Executive written notice that the Board of Directors of the Company has
determined in good faith that the Assignment has been substantially completed,
but in no event will the Employment Period expire before December 31, 2003 under
this Section 1(b). The Employment Period may be extended upon mutual agreement
in writing signed by Executive and an officer of the Company specifically
designated by the Board of Directors of the Company to execute such writing. In
any case, the Employment Period may be terminated earlier under the terms and
conditions set forth herein.
2. Position and Duties. During the Employment Period,
Executive shall serve as Vice President - Strategic Development of the Company
and report to the Chief Executive Officer of the Company. Executive shall have
responsibility for developing and executing the plans of the Company for
operational reorganization, restructuring, asset divestiture and other special
projects identified by the Company, and the performance of such other executive
services and duties as shall be reasonably assigned to and requested of him by,
and subject to the direction and supervision of, the Chief Executive Officer or
the Board of Directors of the Company. Executive shall devote substantially all
his working time and efforts to the business and affairs of the Company and
serve the Company in its business and perform his duties to the best of his
ability.
3. Compensation.
(a) Salary. During the Employment Period, Executive shall
receive a base salary at the rate of Two Hundred Fifty Thousand Dollars
($250,000) per year (the "Base Salary Amount"). Executive's salary shall be
reviewed on an annual basis by the Board of Directors of
the Company or any authorized Committee thereof. Executive's salary may be
adjusted based upon such annual review, although any such adjustment shall be at
the sole discretion of the Board of Directors or any authorized Committee
thereof. Notwithstanding the foregoing, in no event shall Executive's salary be
adjusted below the Base Salary Amount. Such salary shall be payable in bi-weekly
installments or otherwise in accordance with the normal policies of the Company
for payment of corporate officers.
(b) Benefits. During the Employment Period, Executive shall be
eligible to participate in any employee benefits plans which are maintained or
established by the Company for its corporate officers, subject, however, to all
of the terms and conditions thereof, including any eligibility requirements
therefor, including: (i) medical, dental and vision insurance coverage; (ii)
life insurance coverage; (iii) 401(k) Retirement Plan; (iv) four weeks of paid
vacation annually (three weeks in 2002 and prorated proportionately in any other
year in which Executive is employed by the Company for less than the full year)
to be taken at such time or times as are chosen by Executive; and (v) the use of
a leased automobile (including insurance).
(c) Incentive Plan and Option Plan. During the Employment
Period, Executive also shall be eligible to participate in the following,
subject to all of the terms and conditions thereof including any eligibility
requirements therefor: (i) the Management Incentive Compensation Plan or any
successor plan (the "Incentive Plan"); and (ii) any stock option plan of the
Company in which the Company's corporate officers generally are eligible to
participate (the "Option Plan"). Payment under the Incentive Plan shall be
determined by, and awarded in the sole discretion of, the Board of Directors of
the Company or any authorized Committee thereof and shall be dependent upon the
Company's financial performance and Executive's performance toward established
goals. Executive's annual bonus potential under the Incentive Plan shall be up
to 100% of Executive's Base Salary Amount but there shall be no guaranteed
awards, except that solely for fiscal year 2002 Executive's bonus award under
the Incentive Plan shall be not less than Fifty Thousand Dollars ($50,000). On
an annual basis, the Board of Directors of the Company or any authorized
Committee thereof may in its sole discretion grant Executive options to purchase
common stock of the Company under the Option Plan in addition to any option
previously granted to Executive.
(d) Expenses. The Company shall reimburse Executive for
reasonable expenses incurred by him on behalf of the Company in the performance
of his duties during the Employment Period. Executive shall furnish the Company
with such documentation as is requested by the Company in order for it to comply
with the Internal Revenue Code of 1986, as amended, and regulations thereunder
in connection with the proper deduction of such expenses.
4. Termination of Employment.
(a) Events of Termination. The Employment Period shall
terminate immediately upon the occurrence of any of the following events: (i)
expiration of the Employment Period under Section 1(a) or 1(b); (ii) the death
of Executive; (iii) the expiration of the 30th calendar day (the "Disability
Effective Date") after the Company gives Executive written notice of its
election to terminate Executive's employment upon the Disability of Executive,
if before the expiration of such 30-day period Executive has not returned to the
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performance of his duties hereunder on a full-time basis; (iv) voluntary
termination by Executive of his employment with the Company without Good Reason,
a right reserved to Executive hereunder; (v) the Company's discharge of
Executive for Good Cause; (vi) the Company's discharge of Executive at any time
without Good Cause, for any reason or no reason; or (vii) voluntary termination
by Executive of his employment with the Company for Good Reason. Section 5 sets
forth the benefits to which Executive is entitled, if any, upon termination of
Executive's employment upon the occurrence of one of the foregoing events.
(b) Notice of Termination. Any termination by the Company for
Good Cause, or by Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated and (iii) specifies the Date of Termination (as defined below). The
failure by Executive or the Company to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Good Reason or Good
Cause shall not waive any right of Executive or the Company, respectively,
hereunder or preclude Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing Executive's or the Company's rights
hereunder.
(c) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated by the Company for Good Cause, or by
Executive for Good Reason, the date of termination of employment that is set
forth in the Notice of Termination (which shall not be earlier than the date on
which such notice is given), (ii) if Executive's employment is terminated by the
Company other than for Good Cause or Disability, or Executive resigns without
Good Reason, the date on which the Company or Executive notifies Executive or
the Company, respectively, of such termination, or such later date as may be
specified by the terminating party in such notice, and (iii) if Executive's
employment is terminated by reason of death, Disability or expiration of the
Employment Period under Section 1(a) or 1(b), the date of death of Executive,
the Disability Effective Date or the date of expiration of the Employment Period
under Section 1(a) or 1(b), as the case may be.
5. Obligations of the Company upon Termination.
(a) Discharge Without Good Cause or Resignation for Good
Reason. If, during the Employment Period,
(x) the Company terminates Executive's employment under Section 4(a)
(vi) without Good Cause, or
(y) Executive terminates his employment under Section 4(a)(vii) for
Good Reason,
then, in lieu of further base salary or bonus payments, the Company shall pay to
Executive in a lump sum in cash within 30 calendar days after the Date of
Termination an amount equal to the sum of:
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(i) the sum of (A) Executive's annual base salary at
the rate then in effect through the Date of Termination to the extent
not previously paid, (B) Executive's Earned Bonus Amount for the
calendar year in which the Date of Termination occurs (the "Current
Year") to the extent not previously paid and (C) any cash bonus under
the Incentive Plan determined and awarded to Executive under Section
3(c) before the Date of Termination for the calendar year before the
Current Year to the extent not previously paid (the sum of (A), (B) and
(C) is referred to herein as the "Accrued Obligations"); and
(ii) the product of (A) the lesser of (1) the number
of months (including fractions thereof) remaining from the Date of
Termination until Executive's 65th birthday or (2) six (such applicable
number of months after the Date of Termination hereinafter referred to
as the "Section 5(a) Continuation Period") and (B) one-twelfth (1/12th)
of Executive's annual base salary at the rate then in effect.
Executive shall not be entitled to any payment under this Section 5(a) if
Executive is entitled to the benefits of Section 5(b).
(b) Discharge Without Good Cause or Resignation for Good
Reason After a Change in Control. If a Change in Control occurs during the
Employment Period, and during the Employment Period
(x) the Company terminates Executive's employment under Section
4(a)(vi) without Good Cause after such Change in Control (or after the
Company or any Significant Stockholder has entered into a definitive
agreement with a third party resulting in such Change in Control), or
(y) Executive terminates his employment under Section 4(a)(vii) for
Good Reason after such Change in Control,
then, in lieu of further base salary or bonus payments and in lieu of any
payment under Section 5(a), the Company shall pay to Executive in a lump sum in
cash within 30 calendar days after the Date of Termination an amount equal to
the sum of:
(i) the Accrued Obligations; and
(ii) the product of (A) the lesser of (1) the number
of months (including fractions thereof) remaining from the Date of
Termination until Executive's 65th birthday or (2) twelve (such
applicable number of months after the Date of Termination hereinafter
referred to as the "Section 5(b) Continuation Period") and (B)
one-twelfth (1/12th) of Executive's annual base salary at the rate then
in effect.
(c) Additional Provisions Concerning Discharge Without
Good Cause or Resignation for Good Reason. If, during the Employment Period, the
Company terminates Executive's employment under Section 4(a)(vi) without Good
Cause or Executive terminates his employment under Section 4(a)(vii) for Good
Reason, then this Section 5(c) shall apply. As used in this Section 5(c), the
"Applicable Continuation Period" shall mean the Section 5(a) Continuation Period
if Executive is entitled to the benefits of Section 5(a) or the Section 5(b)
Continuation Period if Executive is entitled to the benefits of Section 5(b). In
no case shall Executive be entitled to the benefits of both Sections 5(a) and
5(b).
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(i) For purposes of Section 5(a) or 5(b), as applicable,
any amounts of compensation deferred by Executive under a deferral plan of the
Company or any of its affiliates shall be deemed to have been paid on the date
of deferral, and all such deferred amounts shall be payable as governed by the
terms of the applicable deferral plan.
(ii) For the duration of the Applicable Continuation
Period, Executive shall be eligible to participate in the employee benefits
plans referred to in Sections 3(b)(i) and (ii) as if he were still employed by
the Company, to the extent and at the level of Executive's participation
thereunder immediately prior to the Date of Termination, but all Company
contributions or payments under any such employee benefit plans shall be subject
to Executive's fulfillment of his contribution requirements thereunder, and
Company provision of the benefits listed in Sections 3(b)(i) and (ii) shall
cease if Executive obtains such coverage, if any, from another employer during
the Applicable Continuation Period.
(iii) Executive shall be entitled to receive any other
benefits provided for in Sections 3(b) and 3(c) which have accrued up to and
including the Date of Termination (including payment at Executive's then-current
base salary rate for any unused vacation time accrued during the Current Year),
to the extent not otherwise provided by this Section 5 but subject to the terms
and conditions of the benefit plans referenced in Sections 3(b) and 3(c), and
reimbursement of reasonable expenses incurred up to and including the Date of
Termination under the terms of Section 3(d).
(d) Death or Disability; Discharge for Good Cause; Resignation
Without Good Reason. Executive shall be entitled to the severance benefits
specified in this Section 5(d) if, during the Employment Period, Executive's
employment with the Company (i) terminates under Section 4(a)(ii) as a result of
Executive's death or under Section 4(a)(iii) as a result of Executive's
Disability, (ii) is terminated under Section 4(a)(v) by the Company for Good
Cause, or (iii) is terminated by Executive on a voluntary basis under Section
4(a)(iv) without Good Reason. In any such case, Executive shall be entitled to
payment of base salary only for the remainder of the month in which such
termination occurs and thereafter such salary shall end and cease to be payable.
In addition, in any such case, Executive shall be entitled to receive any
benefits provided for in Sections 3(b) and 3(c) which have accrued up to and
including the Date of Termination, subject to the terms and conditions of the
benefit plans referenced in Sections 3(b) and 3(c), and reimbursement of
reasonable expenses incurred up to and including the Date of Termination under
the terms of Section 3(d).
(e) Expiration of the Employment Period. If Executive's
employment with the Company terminates under Section 4(a)(i) in connection with
the expiration of the Employment Period under Section 1(a) or 1(b), Executive
shall be entitled to (i) payment of base salary only through the Date of
Termination, and thereafter such salary shall end and cease to be payable, (ii)
receive, subject to the terms and conditions of the benefit plans referenced in
Sections 3(b) and 3(c), any benefits provided for in Sections 3(b) and 3(c)
which have accrued up to and including the Date of Termination, and (iii)
reimbursement of reasonable expenses incurred up to and including the Date of
Termination under the terms of Section 3(d).
6. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be
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affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against Executive or others. In no event
shall Executive be obligated to seek other employment or take any other action
by way of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement.
7. Indemnification. The Company shall indemnify Executive and
his representatives, successors and estate against claims arising in connection
with Executive's status as an officer, employee or agent of the Company, in
accordance with the Company's Certificate of Incorporation, By-Laws and policies
for its executive officers, subject to applicable law.
8. Restrictive Covenants.
(a) Non-Competition. During the Employment Period and until
the end of the Post-Termination Covered Period, Executive shall not, directly or
indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer, employee,
partner or director with, or have any financial interest in, any business which
is in substantial competition with any business conducted by the Chart Group, in
any area where such business is being conducted at the time of such termination
of employment. Ownership of 5% or less of the voting stock of any corporation
which is required to file periodic reports with the Securities and Exchange
Commission under the Exchange Act shall not constitute a violation hereof. As
used herein, the "Post-Termination Covered Period" shall mean a period of time
commencing on the Date of Termination and ending on the first anniversary of the
Date of Termination, except that if Executive's employment terminates under
circumstances in which he is entitled to a payment under Section 5(a) (but not
entitled to a payment under Section 5(b)), then such period instead shall end
six months after the Date of Termination.
(b) Non-Solicitation. Executive shall not directly or
indirectly, at any time during the Employment Period and until the end of the
Post-Termination Covered Period, solicit or induce or attempt to solicit or
induce any customer, employee or sales representative of the Chart Group to
terminate his, her or its customer, employment, or representation relationship
with the Chart Group or in any way directly or indirectly interfere with such a
relationship.
(c) Confidentiality. Executive shall keep in strict
confidence, and shall not, directly or indirectly, at any time during the
Employment Period and for one year after the Date of Termination, disclose,
furnish, publish, disseminate, make available or, except in the course of
performing his duties of employment hereunder, use any Confidential Information.
Executive specifically acknowledges that all Confidential Information, in
whatever media or form maintained and whether compiled by the Chart Group or
Executive, derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value from its
disclosure or use, that reasonable efforts have been made by the Chart Group to
maintain the secrecy of such information, that such information is the sole
property of the Chart Group and that any disclosure or use of such information
by Executive during the Employment Period (except in the course of performing
his duties and obligations hereunder) or within one year after the Date of
Termination shall constitute a misappropriation of the Chart Group's trade
secrets. Notwithstanding the foregoing, Executive shall not be
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prohibited from disclosing Confidential Information to the extent that he is
required to do so by or under applicable law.
9. Binding Agreement; Successors. This Agreement shall inure
to the benefit of and be binding upon Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts would still be
payable to him hereunder, all such amounts, unless otherwise provided herein,
shall be paid in accordance with this Agreement to the person, persons, entity
or entities as Executive shall have designated, in a writing in form of Exhibit
1 attached hereto or otherwise satisfactory to the Company, and filed with the
Secretary of the Company. Executive shall be free to amend, alter or change such
designation, provided, however, that any such amendment, alteration or change
shall be made by a writing in form of Exhibit 1 attached hereto or otherwise
satisfactory to the Company and shall be filed with the Secretary of the
Company. In the event there is no beneficiary designated pursuant to this
Section 9 or such designation is not effective for the amounts payable on behalf
of Executive under this Agreement, or if no such beneficiary shall survive
Executive, then such amounts shall be paid to Executive's spouse, if his spouse
survives him, or if his spouse does not survive him, to the executor or
administrator of his estate for distribution as part of his estate. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, including, without limitation, any person acquiring
directly or indirectly all or substantially all of the assets of the Company,
whether by merger, consolidation, sale or otherwise (and such successor shall
thereafter be deemed the "Company" for the purposes of this Agreement). The
Company shall require any such successor to assume and agree to perform this
Agreement.
10. Notice. All notices, requests and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) when hand delivered, (b) one business day after being sent by
recognized overnight delivery service, or (c) three business days after being
sent by registered or certified mail, return receipt requested, postage prepaid,
and in each case addressed as follows (or addressed as otherwise specified by
notice under this Section):
(i) If to the Company, to:
Chart Industries, Inc.
0000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: General Counsel
With a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. XxXxx
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(ii) If to Executive, to:
G. Xxx X. Xxx Xxxxxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
With a copy to:
Chriszt XxXxxxx Co., LPA
Cort Shoe Building, 4th Floor
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
11. Withholding. The Company may withhold from any amounts
payable under or in connection with this Agreement all federal, state, local and
other taxes as may be required to be withheld by the Company under applicable
law or governmental regulation or ruling.
12. Amendments; Waivers. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing, and is signed by Executive and an officer of the Company
specifically designated by the Board of Directors of the Company to execute such
writing. No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
13. Jurisdiction. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Ohio, without giving effect to the conflict of law principles of such State.
Executive and the Company each agree that the state and federal courts located
in the State of Ohio shall have jurisdiction in any action, suit or proceeding
against Executive or the Company based on or arising out of this Agreement and
each of Executive and the Company hereby (a) submits to the personal
jurisdiction of such courts, (b) consents to service of process in connection
with any such action, suit or proceeding and (c) waives any other requirement
(whether imposed by statute, rule of court or otherwise) with respect to
personal jurisdiction, venue or service of process.
14. Equitable Relief. Executive and the Company acknowledge
and agree that the covenants contained in Section 8 are of a special nature and
that any breach, violation or evasion by Executive of the terms of Section 8
shall result in immediate and irreparable injury and harm to the Company, for
which there is no adequate remedy at law, and shall cause damage to the Company
in amounts difficult to ascertain. Accordingly, the Company shall be entitled to
the remedy of injunction, as well as to all other legal or equitable remedies to
which the Company may be entitled (including, without limitation, the right to
seek monetary damages), for any breach, violation or evasion by Executive of the
terms of Section 8.
15. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this
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Agreement, which shall remain in full force and effect. In the event that any
provision of Section 8 is found by a court of competent jurisdiction to be
invalid or unenforceable as against public policy, such court shall exercise its
discretion in reforming such provision to the end that Executive shall be
subject to such restrictions and obligations as are reasonable under the
circumstances and enforceable by the Company.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
17. Headings; Definitions. The headings contained herein
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. Certain capitalized terms used in this
Agreement are defined on Schedule A attached hereto.
18. No Assignment. This Agreement may not be assigned by
either party without the prior written consent of the other party, except as
provided in Section 9.
19. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the employment of Executive and
supersedes any and all other agreements, either oral or in writing, with respect
to the employment of Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CHART INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
/s/ G. Xxx X. xxx Xxxxxxxx
------------------------------------------------
G. XXX X. XXX XXXXXXXX
("Executive")
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Schedule A
Certain Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Change in Control" shall mean the occurrence at any time of any of the
following events:
(a) The Company is merged or consolidated or
reorganized into or with another corporation or other legal person or
entity, other than a Related Person, and as a result of such merger,
consolidation or reorganization less than 60% of the combined voting
power of the then-outstanding securities of such corporation, person or
entity immediately after such transaction is held in the aggregate by
the holders of Voting Stock immediately prior to such transaction;
(b) The Company sells or otherwise transfers all or
substantially all of its assets to any other corporation or other legal
person or entity, other than a Related Person, and less than 60% of the
combined voting power of the then-outstanding securities of such
corporation, person or entity immediately after such sale or transfer
is held in the aggregate by the holders of Voting Stock immediately
prior to such sale or transfer;
(c) There is a report filed on Schedule 13D or
Schedule TO (or any successor schedule, form or report), each as
promulgated pursuant to the Exchange Act, disclosing that any person
(as the term "person" is used in Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act) other than a Related Person has become the
beneficial owner (as the term "beneficial owner" is defined under Rule
l3d-3 or any successor rule or regulation promulgated under the
Exchange Act) of securities representing 40% or more of the Voting
Power;
(d) The Company files a report or proxy statement
with the Securities and Exchange Commission pursuant to the Exchange
Act disclosing in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a change in
control of the Company has or may have occurred or shall or may occur
in the future pursuant to any then-existing contract or transaction
other than a contract or transaction with a Related Person; or
(e) If during any period of two consecutive years,
individuals, who at the beginning of any such period, constitute the
Directors cease for any reason to constitute at least a majority
thereof, unless the nomination for election by the Company's
shareholders of each new Director was approved by a vote of at least a
majority of the Directors then in office who were Directors at the
beginning of any such period.
Notwithstanding the foregoing provisions of
paragraphs (c) and (d) of this definition, a "Change in Control" shall
not be deemed to have occurred for purposes of this Agreement (i)
solely because (A) the Company, (B) a Related Person, (C) a Subsidiary,
or (D) any Company-sponsored employee stock ownership plan or other
employee benefit plan of the Company or any Subsidiary, or any entity
holding shares of Voting Stock for or pursuant to the terms of any such
plan, either files or becomes
obligated to file a report or proxy statement under or in response to
Schedule 13D, Schedule TO, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act,
disclosing beneficial ownership by it of shares of Voting Stock or
because the Company reports that a change in control of the Company
has or may have occurred or shall or may occur in the future by reason
of such beneficial ownership, (ii) solely because the Company or any
other person, group or entity directly involved in the restructuring
of the Company's capital and debt arrangements related to the
Company's Credit Agreement, dated as of April 12, 1999, as amended,
either files or becomes obligated to file a report on Schedule 13D,
Schedule TO, Form 8-K or Schedule 14A (or any successor schedule, form
or report) under the Exchange Act, disclosing beneficial ownership by
it of shares of Voting Stock acquired from the Company in connection
with such restructuring or because the Company reports that a change
in control of the Company has or may have occurred or shall or may
occur in the future by reason of such transaction, but only if both
(A) the transaction giving rise to such filing or obligation is
approved in advance of consummation thereof by the Company's Board of
Directors and (B) at least a majority of the Voting Power immediately
after such transaction is held in the aggregate by the holders of
Voting Stock immediately prior to such transaction, or (iii) solely
because of a change in control of any Subsidiary.
"Chart Group" means, collectively, the Company and each group,
division and Subsidiary of the Company.
"Confidential Information" means confidential business information of
the Chart Group and its customers and vendors, without limitation as to
when or how Executive may have acquired such information. Such
Confidential Information shall include, without limitation, the Chart
Group's manufacturing, selling and servicing methods and business
techniques, customer, vendor and product information, product
development plans, internal financial statements, sales and
distribution information, business plans and opportunities, corporate
alliances, processes and techniques, and other information concerning
the Chart Group's actual or anticipated business or products, or which
is received in confidence by or for the Chart Group from any other
person.
"Director" means a member of the Board of Directors of the Company.
"Disability" means the inability of Executive for a continuous period
of three months to perform the essential functions of his position
hereunder on an active full-time basis with or without reasonable
accommodations by reason of a disability condition. A certificate from
a physician acceptable to both the Company and Executive to the effect
that Executive is or has been disabled and incapable of performing the
essential functions of his position with or without reasonable
accommodations for the Company as previously performed shall be
conclusive of the fact that Executive is incapable of performing such
services and is, or has been, disabled for the purposes of this
Agreement. The Company and Executive acknowledge and agree that the
essential functions of Executive's position are unique and critical to
the Company and that a disability condition that causes Executive to be
unable to perform the essential functions of his position under the
circumstances described above shall constitute an undue hardship on the
Company.
A-2
"Earned Bonus Amount" means an amount equal to the product of (a) the
Achieved Target Bonus and (b) a fraction, the numerator of which is the
number of days in the Current Year through the Date of Termination, and
the denominator of which is 365; provided, however, that if the Date of
Termination occurs on or before December 31, 2002, then the Earned
Bonus Amount instead shall mean $50,000. As used herein, "Achieved
Target Bonus" means an amount equal to the portion of Executive's
target cash bonus for the Current Year under the Incentive Plan
achieved by Executive based upon the Company's financial performance
and Executive's performance (through the Date of Termination and
assuming such performance would continue at the same level for the
entire Current Year) toward reaching the objective goals established
for achieving such target cash bonus, all as determined by the Board of
Directors of the Company or any authorized Committee thereof under the
Incentive Plan in good faith.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, as such law, rules and
regulations may be amended from time to time.
"Good Cause" means a determination by the Board of Directors (without
the participation of Executive) of the Company, pursuant to the
exercise of its business judgment, that any one of the following events
has occurred and not been cured by Executive within 60 calendar days
after the Company first gave Executive written notice thereof:
(a) Executive has been indicted by a state or federal grand jury
of committing a felony;
(b) the Board receives proof satisfactory to it of the commission
by Executive of theft or embezzlement from the Company, or any other
crime against the Company;
(c) Executive has materially breached the provisions of Section 8
or any other material provision of this Agreement; or
(d) Executive's failure, refusal or inability to perform his
services and duties to the Company as set forth in Section 2, any act
of gross negligence, corporate waste, disloyalty, or unfaithfulness to
the Company which adversely affects the business of the Company, or
any other act or course of conduct which could reasonably be expected
to have an adverse affect on the business of the Company such as, by
way of example only, intentionally causing the Company to violate
federal, state or local environmental, labor, antitrust, or other
similar laws, or sexual or other illegal harassment of employees.
"Good Reason" means a determination by Executive made in good faith
that either of the following events has occurred, without Executive's
express written consent, and not been cured by the Company within 15
calendar days after Executive first gave the Company written notice
thereof: (a) a significant reduction in the nature or scope of the
title, authority or responsibilities of Executive from those held by
Executive upon
A-3
commencement of the Employment Period; (b) a reduction in Executive's
base salary below the Base Salary Amount.
"Related Person" means (a) Xxxxxx X. Xxxxxx, (b) Xxxxxxx X. Xxxxxx, (c)
any person, group or entity controlled directly, or indirectly through
one or more intermediaries, by Xxxxxx X. Xxxxxx or Xxxxxxx X. Xxxxxx or
both of them, and (d) any of the foregoing acting alone or in concert.
"Significant Stockholder" means any person who is now or hereafter
becomes the beneficial owner (as the term "beneficial owner" is defined
under Rule l3d-3 or any successor rule or regulation promulgated under
the Exchange Act) of securities representing 25% or more of the Voting
Power.
"Subsidiary" means a corporation, company or other entity (a) more than
50% of whose outstanding shares or securities (representing the right
to vote for the election of directors or other managing authority) are,
or (b) which does not have outstanding shares or securities (as may be
the case in a partnership, joint venture or unincorporated
association), but more than 50% of whose ownership interest
representing the right generally to make decisions for such other
entity is, now or hereafter, owned or controlled, directly or
indirectly, by the Company.
"Voting Power" means, at any time, the total votes relating to the
then-outstanding securities entitled to vote generally in the election
of Directors.
"Voting Stock" means, at any time, the then-outstanding securities
entitled to vote generally in the election of Directors.
A-4
Exhibit 1
DESIGNATION OF BENEFICIARY
As of July 1, 2002, I, the undersigned, entered into an
Employment Agreement with Chart Industries, Inc. Pursuant to Section 9 of said
Agreement, I have the right to designate the beneficiary(ies) to receive certain
payments in the event of my death. I, therefore, exercise this right and
designate ________________________________, to receive any such payments. Any
and all previous designations of beneficiary with respect to such payments made
by me are hereby revoked, and I hereby reserve the right to revoke this
designation of beneficiary under the terms described in Section 9 of said
Agreement.
_____________________________
G. Xxx X. xxx Xxxxxxxx
Dated: __________________, 20___
Receipt of this Designation of Beneficiary is acknowledged by
the undersigned on behalf of Chart Industries, Inc.
CHART INDUSTRIES, INC.
By________________________________
_________________
Dated: ___________________, 20___
