CHART INDUSTRIES, INC. STOCKHOLDER AGREEMENT
Exhibit 10.11
CHART INDUSTRIES, INC.
This Stockholder Agreement (this “Agreement”) is made and entered into effective as of
___, 2006, by and between Chart Industries, Inc., a Delaware corporation (the
“Company”) and FR X Chart Holdings, LLC, a Delaware limited liability company (“First
Reserve”).
R E C I T A L S
1.1. Designation of Directors. (a) First Reserve shall be entitled to
designate individuals to serve on the Board of Directors of the Company (the “Board”) in
accordance with the following:
(i) First Reserve shall be entitled to designate three (3) directors for so
long as it owns less than 50% but at least 25% of the aggregate number of shares of
Common Stock outstanding;
(ii) First Reserve shall be entitled to designate two (2) directors for so long
as it owns less than 25% but more than 10% of the aggregate number of shares of
Common Stock outstanding; and
(iii) First Reserve shall be entitled to designate one (1) director for so long
as it owns 10% of the aggregate number of shares of Common Stock outstanding; and
(iv) First Reserve shall not be entitled to designate any directors if it holds
less than 10% of the aggregate number of shares of Common Stock outstanding.
(b) If any of the directors designated by First Reserve pursuant to Section 1.1(a)
hereof is removed or vacates such position for any reason whatsoever, First Reserve shall be
entitled to designate a new director to replace such former director as promptly as practicable
after the occurrence of such removal or vacancy.
(c) In connection with an initial public offering or as otherwise required by
applicable federal and state securities laws, the Board shall be expanded to include such
additional independent directors as may be required by law or the rules of any exchange on which
the shares are traded, with such independent directors to be selected by the Board and to be
reasonably acceptable to First Reserve.
1.2 Fiduciary Duties. For purposes of clarification, each of the parties hereto
agrees that, without limiting the fiduciary duties of members of the Board appointed by First
Reserve to act in the best interests of the Company, First Reserve shall have no implied or express
duty to the Company or to any other stockholder or optionholder of the Company as a result of this
Agreement, and may act in its role as a stockholder accordingly. Each of the parties hereto
further acknowledges that the scope of the duty of loyalty imposed under the Delaware General
Corporation Law on First Reserve and its designees shall be defined and limited as follows.
(a) Certain Potential Conflicts. Each of the parties hereto acknowledges that:
(i) Any FRC Affiliate (as defined below) may engage in material business transactions with the
Company;
(ii) directors, officers, and/or employees of any FRC Affiliate may serve as directors,
officers, and/or employees of the Company or its subsidiaries;
(iii) one or more FRC Affiliates may now or in the future engage in the same or similar lines
of business or other business activities as those in which the Company or its subsidiaries may
engage; and
(iv) one or more FRC Affiliates may exercise a controlling influence over certain of the
business, policy and strategic decisions of the Company and its subsidiaries.
(v) For purposes of this Agreement,
(A) the term “FRC Affiliate” means First Reserve and any person directly or indirectly
controlling, controlled by or under common control with First Reserve. For purposes of the
foregoing definition, the term “controlling” “controlled by” or “under common
control with” means the power to direct or cause the direction of the management and policies
of a person or entity, whether through the ownership of voting securities, by contract or
otherwise.
(B) the term “affiliate” means with respect to any person, any other person directly
or indirectly controlling, controlled by or under common control with such person. For purposes of
the foregoing definition, the term “controlling” “controlled by” or “under
common control with” means the power to direct or cause the direction of the management and
policies of a person or entity, whether through the ownership of voting securities, by contract or
otherwise.
(b) Limitation of Liability. To the fullest extent permitted by law, neither any FRC
Affiliate nor any director, officer or employee of any FRC Affiliate who may serve as an officer,
director and/or employee of the Company and/or its subsidiaries shall be liable to the Company or
its subsidiaries, except as expressly agreed in any written contract between the Company or any of
its subsidiaries and an FRC Affiliate:
(i) by reason of any business decision or transaction undertaken by any FRC Affiliate which
may be adverse to the interests of the Company or its subsidiaries;
(ii) by reason of any activity undertaken by any FRC Affiliate or by any other person in which
any FRC Affiliate may have an investment or other financial interest which is in competition with
the Company or its subsidiaries; or
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(iii) without limiting the effect of Section 144 of the Delaware General Corporation Law, by
reason of any transaction with any FRC Affiliate, or any transaction in which any FRC Affiliate
shall have a financial interest, unless the party seeking to assert such liability shall bear the
burden of proving, by clear and convincing evidence, that such transaction was not fair to the
Company at the time it was authorized by the Board or a committee thereof.
(c) Competing Activities. Except as otherwise expressly provided in a written
agreement between the Company or any of its subsidiaries and an FRC Affiliate:
(i) any FRC Affiliate and its officers, directors, agents, shareholders, members, partners,
affiliates and subsidiaries, may engage or invest in, independently or with others, any business
activity of any type or description, including without limitation those that might be the same as
or similar to the Company’s business. Without limiting the foregoing, the parties hereto
acknowledge that FRC Affiliates may from time to time compete, directly or indirectly, with the
Company, and that any such FRC Affiliate may in its sole discretion pursue such competing business
without disclosure of such competition to the Company);
(ii) none of the Company, any subsidiary of the Company nor any other stockholder of the
Company shall have any right in or to such business activities or ventures or to receive or share
in any income or proceeds derived therefrom; and
(iii) to the extent required by applicable law in order to effectuate the purpose of this
provision, the Company shall have no interest or expectancy, and specifically renounces any
interest or expectancy, in any such business activities or ventures.
(i) A “Company Opportunity” shall mean an investment or business opportunity or
prospective economic advantage in which the Company or its subsidiaries or First Reserve or any FRC
Affiliate could, but for the provisions of this Agreement, have an interest or expectancy. Except
as set forth below in Section 1.2(d)(ii), (A) if any FRC Affiliate or, any of its officers,
directors, agents, stockholders, members, partners, or subsidiaries acquires knowledge of, or an
interest or an expectancy in, a Company Opportunity, none of the Company and its subsidiaries shall
have any interest or expectancy, and the Company hereby renounces any interest or expectancy, in
such Company Opportunity; and (B) no such FRC Affiliate nor any of its officers, directors, agents,
stockholders, members, partners, affiliates or subsidiaries shall (1) have a duty to communicate or
present such a Company Opportunity to the Company or its subsidiaries or (2) be deemed to have
breached any fiduciary duty as a stockholder, director, or officer of the Company or otherwise by
pursuing or acquiring such Company Opportunity for itself or not communicating information
regarding such Company Opportunity to the Company.
(ii) Notwithstanding the provisions of clause 1.2.(d)(i), the Company does not renounce any
interest or expectancy it may have in any Company Opportunity that is or was (A) offered to any
person who is both (1) an officer or director of an FRC Affiliate and (2) an officer, director or
employee of the Company, if such opportunity is expressly offered to such person in his or her
capacity as an officer, director or employee of the Company; or (B) first identified by an FRC
Affiliate solely through the disclosure of information made by or on behalf of the Company.
(iii) Neither the alteration, amendment or repeal of this Section 1.2 nor the adoption of any
provision or amendment of the Certificate of Incorporation of the Company inconsistent with this
Section 1.2 shall eliminate or reduce the effect of this Section 1.2 in respect of any matter
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occurring, or any cause of action, suit or claim that, but for this Section 1.2, would accrue
or arise prior to such alteration, amendment, repeal or adoption.
2.1. Definitions. For purposes of this Section 2:
2.2. Demand Registration.
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registration from which all or a portion of the Registrable Securities of First Reserve were
excluded pursuant to the provisions of Section 2.3(b).
(i) The Company shall be entitled to require that a Holder or Holders refrain from effecting
any public sales or distributions of the Registrable Securities pursuant to a Holder Shelf
Registration (a “Distribution Suspension”), if the Board reasonably determines that such
public sales or distributions would interfere in any material respect with any transaction
involving the Company that the Board reasonably determines to be material to the Company; provided,
however, that in no event shall
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any one or more Distribution Suspension(s) be in effect for more than a total of ninety (90)
days in any twelve month period. The Board shall, as promptly as practicable, give the Holders
written notice of any Distribution Suspension. If the Board institutes a Distribution Suspension,
the Company shall be required to lift that Distribution Suspension as soon as reasonably
practicable after the Board determines public sales or distributions by Holders shall not interfere
with any such transaction (and, in all events, on or before the 90 day limit set forth above).
(ii) The Form S-3 shall provide that First Reserve and the other Holders participating in the
Shelf Registration (collectively, the “Shelf Holders”), may from time to time distribute
some or all of the Registrable Securities included in that Shelf Registration (the “Shelf
Securities”) by means of an underwritten offering (a “Shelf Underwriting”). The
Company may not participate in any such Shelf Underwriting without the prior consent of First
Reserve in its sole discretion. Only First Reserve shall have the right to initiate a Shelf
Underwriting with respect to Shelf Securities included in a Holder Shelf Registration, and each
such Shelf Underwriting shall be governed by the terms of this Section 2.2 but shall not constitute
an additional demand for purposes of Section 2.2(e).
(iii) First Reserve shall provide the Company with written notice (a “Shelf Underwriting
Request”) if it wishes to distribute Shelf Securities pursuant to a Shelf Underwriting. Each
Shelf Underwriting Request shall indicate the proposed timing and number of Shelf Securities to be
sold by First Reserve pursuant to the Shelf Underwriting, and shall also include First Reserve’s
good faith judgment as to whether, given the proposed timing of the Shelf Underwriting, it would be
reasonably practicable for the other Shelf Holders to participate in such Shelf Underwriting. The
requirements of this Section 2.2(c)(iii) shall not apply to any Shelf Underwriting in which, in
First Reserve’s good faith judgment, it would not be reasonably practicable for the other Shelf
Holders to participate given the proposed timing of that Shelf Underwriting (each such Shelf
Underwriting, an “Overnight Deal”). No other Shelf Holder shall have a right to
participate with First Reserve in any Overnight Deal. The Company shall inform each other Holder
of any Overnight Deal promptly after its consummation.
(iv) Within two business days of receiving a Shelf Underwriting Request for a Shelf
Underwriting that is not an Overnight Deal, the Company shall give written notice (a “Shelf
Notice”) of such Shelf Underwriting Request to all other Shelf Holders. Each Shelf Holder
desiring to include all or any part of the Shelf Securities held by such Shelf Holder in any such
Shelf Underwriting shall within two business days after receipt of the Shelf Notice so notify in
writing the Company and First Reserve, and in such notice shall inform the Company and First
Reserve of the number of Shelf Securities such Shelf Holder (each, along with First Reserve, a
“Participating Holder”) wishes to include in such Shelf Underwriting.
(v) The Company and all Participating Holders shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for such Shelf Underwriting
by First Reserve. If the managing underwriter(s) determine in good faith that marketing factors
require a limitation of the number of securities proposed to be included in the Shelf Underwriting,
the Company shall so advise all Participating Holders, and the managing underwriter(s) may exclude
shares of the Shelf Securities as necessary from Shelf Underwriting, with the number of shares to
be included in the Shelf Underwriting allocated to First Reserve and each of the other
Participating Holders requesting inclusion of their Shelf Securities in such Shelf Underwriting on
a pro rata basis, based on the total number of Shelf Securities then held by First Reserve and each
other such Participating Holders (the defined term “Participating Holder” shall be construed for
purposes of this Section 2.2(c)(v) in the same manner as the term “Holder” is construed in the last
sentence of Section 2.2(b)); provided that if the managing underwriter(s) determine in good faith
that allowing Participating Holders other than First Reserve to include their Shelf Securities in a
Shelf Underwriting on a pro rata basis with Shelf Securities requested by First Reserve to be
included in such Shelf Underwriting would
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adversely affect the distribution of the Shelf Securities being offered, then the number of
Shelf Securities to be included in such Shelf Underwriting shall be allocated in the following
manner: first to First Reserve; and second to each of the other Participating
Holders requesting inclusion of their Shelf Securities in such Shelf Underwriting on a pro rata
basis, based on the total number of Shelf Securities then held by each other such Participating
Holders.
(i) If prior to any First Reserve request for registration pursuant to Section 2.2(a), (i) the
Company shall have filed a Shelf Registration covering First Reserve’s Registrable Securities, (ii)
such Shelf Registration contemplated the intended method of distribution requested by First
Reserve, (iii) such Shelf Registration shall have registered for resale by First Reserve its
Registrable Securities, and (iv) the Shelf Registration is effective when First Reserve would
otherwise make a request for registration under Section 2.2(a), the Company shall not be required
to separately register any Registrable Securities in response to such request, and such request
shall be deemed to be a request that the Company cooperate in effecting a Takedown of the
Registrable Securities pursuant to such Shelf Registration.
(ii) If the Company proposes to effect a Takedown from a Shelf Registration, whether for its
own account or for the account of other Holders who have Registrable Securities covered by such
Shelf Registration, or both, the Company shall give notice thereof to First Reserve, and First
Reserve may request to have its Registrable Securities included in such Takedown to the same
extent, and subject to the same limitations (including the reduction of shares included in such
Takedown), as if such Takedown were a registration pursuant to Section 2.3.
(iii) At any time after the date of this Agreement, First Reserve may request that the Company
cooperate in effecting a Takedown of all or any portion of the Registrable Securities held by First
Reserve that remain covered by a Shelf Registration (any such request, other than in response to a
notice from the Company pursuant to Section 2.2(d)(ii), being a “Takedown Request”). If
First Reserve makes a Takedown Request:
| (1) | such Takedown Request shall count against the number of requests for registration permitted to be made by First Reserve only if road show assistance is provided in the offering pursuant to Section 2.5(h); | ||
| (2) | the number of shares of Registrable Securities of First Reserve included in such Takedown may be reduced in the manner set forth in Section 2.2(b); and | ||
| (3) | the Company shall use its reasonable best efforts to effectuate such Takedown as promptly thereafter as practicable, and otherwise shall fulfill its obligations in connection with such Takedown in accordance with the provisions of this Agreement as if such Takedown were a registration requested or effected pursuant to Section 2.2(a). |
(iv) In the case of a request for a Takedown or inclusion in a Takedown, all references in
this Agreement to the effective date of a Registration shall be deemed to refer to the date of
pricing of such Takedown.
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2.3. Piggyback Registrations.
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statement or registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth in this Agreement.
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in a Company Shelf Registration; and (iii) for purposes of Section 2.3, any such Shelf
Underwriting shall be deemed to be a registration for an underwritten offering commenced by the
Company pursuant to Section 2.3. Notwithstanding anything contained in Section 2.2(c), the Company
(along with First Reserve) shall have the right to initiate a Shelf Underwriting to distribute
Registrable Securities included in a Company Shelf Registration, and the Company shall be deemed a
Shelf Holder for purposes of any Shelf Underwriting initiated by First Reserve with respect to
Registrable Securities included in the Company Shelf Registration. If all of the Common Stock held
by First Reserve may be sold or transferred in the manner permitted under Rule 144(k) promulgated
under the Securities Act, First Reserve’s rights under this Section 2.3(f) shall not apply to any
Company Shelf Registration in which, in the Board’s good faith judgment, it would not be reasonably
practicable for First Reserve or any other person to participate given the proposed timing of that
Company Shelf Registration. The Company shall inform First Reserve of any such Company Shelf
Registration promptly after its consummation.
2.4. Lock-ups. With respect to any underwritten offering in which the
Company or First Reserve is selling securities pursuant to Section 2.2 or 2.3 (including without
limitation the Company’s initial public offering and any Shelf Underwriting), beginning on (a) the
effective date of a registration statement filed by the Company pursuant to Section 2.2 or 2.3 (in
the case of a registration statement other than a Shelf Registration) or (b) the date of the
underwriting agreement executed in connection with a Shelf Underwriting (each an “Effective
Date”), other than as provided in the last sentence of this Section 2.4, First Reserve and the
Company each agree (unless the managing underwriters of the underwritten offering otherwise agree)
to not (i) effect any issuance, sale, transfer, assignment, pledge, conveyance (including, without
limitation, taking any short position in), or repurchase of Common Stock (or any securities of the
Company exchangeable or convertible into Common Stock) for a period of 90 days after the Effective
Date (the “Lock-up Period”) or such longer time (not to exceed an additional 90 days) as
requested by the underwriters for such offering and agreed to by First Reserve in its sole
discretion (the “Additional Period”); and (ii) the Company agrees to not file with the SEC
any other registration statement, or any supplement or amendment to a previously filed shelf
registration statement, from the Effective Date until the later of the expiration of the Lock-up
Period or the completion of the period of distribution of any underwritten offering (but not to
exceed the Additional Period). First Reserve and the Company agree to enter into customary lock-up
agreements with an underwriter consistent with the terms of this Section 2.4. The restrictions in
this Section 2.4 shall not prevent the Company from filing with the SEC registration statements
relating to any employee benefit plan, corporate reorganization, or issuance of debt that is not
convertible into equity, and shall not apply to (X) the Registrable Securities to be sold, or any
shares of stock to be sold by the Company, under any underwritten offering contemplated by Section
2.2 or 2.3; (Y) any shares of Common Stock issued by the Company upon the exercise of an option,
warrant or other security or the conversion of a security outstanding on the Effective Date; or (Z)
any shares of Common Stock issued or options or other securities to purchase or acquire Common
Stock granted pursuant to employee benefit plans of the Company existing as of the Effective Date.
2.5. Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement the Company shall, as expeditiously
as reasonably possible:
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2.6. Indemnification. In the event any Registrable Securities owned by
First Reserve are included in a registration statement under Sections 2.2 or 2.3:
(i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such registration
statement;
and the Company will reimburse First Reserve and each such partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably incurred by them, as
incurred, in connection with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this subsection 2.6(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company, which consent shall not be
unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished expressly for use in
connection with such registration by First Reserve or such partner, officer, director, underwriter
or controlling person of First Reserve.
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such registration statement; (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation, and (C) in
determining relative fault, due consideration shall be given to whether any untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or First Reserve on the other.
2.7. Furnish Information.
(a) First Reserve, as a condition to its participation in any registration or
offering contemplated by this Section 2, agrees to furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method of disposition of
such securities as shall be reasonably requested by the Company or otherwise required to timely
effect the Registration of their Registrable Securities.
(b) Upon the reasonable request of the Company, First Reserve shall inform the
Company what Registrable Securities other than Common Stock is owned by First Reserve.
2.8. Rule 144 Reporting; S-3 Eligibility. With a view to making available
the benefits of certain rules and regulations of the SEC which may at any time permit the sale of
“Restricted Securities” (used herein as defined in Rule 144 under the Securities Act) to the public
without registration, and to be eligible to use Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are understood and
defined in Rule 144 under the Securities Act, at all times during which the Company is subject to
the reporting requirements of the Exchange Act;
(b) file with the SEC in a timely manner (including any permissible extensions under
Rule 12b-25 under the Exchange Act or any successor rule) all reports and other documents required
of the Company under the Securities Act and the Exchange Act (at all times during which the Company
is subject to such reporting requirements); and
(c) so long as First Reserve owns any Restricted Securities, to furnish to First
Reserve forthwith upon request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 and with regard to the Securities Act and the Exchange Act
(at all times during which the Company is subject to such reporting requirements), a copy of the
most recent annual or quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by the Company as First
Reserve may reasonably request in availing itself of any rule or regulation of the SEC allowing
First Reserve to sell any such securities without registration.
2.9. Impact of Merger. In the event the Company merges with or into another
entity, the terms of this Section 2 shall apply to any equity received by First Reserve in
connection with the merger in exchange for the Common Stock or other Registrable Securities held by
First Reserve immediately prior to the consummation of the merger.
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3.1. Assignment. Notwithstanding anything herein to the contrary:
3.2. Amendment of Rights. This Agreement may be amended only by a written
instrument signed by each of the parties hereto. If either party fails to enforce any of the
provisions of this Agreement or any rights or fails to exercise any election provided in this
Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in
any way affect the validity of this Agreement. The failure of any party to exercise any of these
provisions, rights or elections will not preclude or prejudice such party from later enforcing or
exercising the same or any other provision, right or election which it may have under this
Agreement.
Each certificate representing shares of capital stock of the Company now or hereafter owned by
a First Reserve shall be endorsed with the following legend, to the extent so required by the
Securities Act or any applicable securities law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. STOCKHOLDERS
SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO
THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
5.1. Notices. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall be in writing and
shall be conclusively deemed to have been duly given (a) when hand delivered to the other party;
(b) when received when sent
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by facsimile at the address and number set forth below; (c) three (3) business days after
deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and
addressed to the parties as set forth below; or (d) the next business day after deposit with a
national overnight delivery service, postage prepaid, addressed to the parties as set forth below
with next-business-day delivery guaranteed, provided that the sending party receives a
confirmation of delivery from the delivery service provider.
To First Reserve:
FR X Chart Holdings, LLC
c/o First Reserve Corporation
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxx
Fax: (000) 000-0000
c/o First Reserve Corporation
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxx
Fax: (000) 000-0000
With a copy to:
First Reserve Corporation
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Fax Number: (000) 000-0000
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Fax Number: (000) 000-0000
and a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
To the Company:
Chart Industries, Inc.
One Infinity Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attn: Chief Financial Officer and Secretary
Fax: (000) 000-0000
One Infinity Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attn: Chief Financial Officer and Secretary
Fax: (000) 000-0000
Each person making a communication hereunder by facsimile shall promptly confirm by telephone
to the person to whom such communication was addressed each communication made by it by facsimile
pursuant hereto but the absence of such confirmation shall not affect the validity of any such
communication. A party may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 5.1 by giving the other parties written notice of the new
address in the manner set forth above.
5.2. Entire Agreement; Interpretation; Termination of Prior Agreements.
This Agreement contains the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties respecting the subject matter of this
Agreement.
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5.3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
EXCLUSIVELY IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, EXCLUDING THAT BODY OF
LAW RELATING TO CONFLICT OF LAWS AND CHOICE OF LAW.
5.4. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement
and the balance of this Agreement shall be interpreted as if such provision(s) were so excluded and
shall be enforceable in accordance with its terms.
5.5. Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their permitted successors
and assigns, any rights or remedies under or by reason of this Agreement.
5.6. Successors and Assigns. Subject to the provisions of Section 3.1, the
provisions of this Agreement shall inure to the benefit of, and shall be binding upon, the
successors and permitted assigns of the parties hereto.
5.7. Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to construe or
interpret this Agreement.
5.8. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile signatures to this Agreement shall be valid for all purposes.
5.9. Arbitration. 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, 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. Either party may demand arbitration by written notice to the other and to the Arbitrator
set forth in this Section 5.9 (“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,
except as required by law. 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.
5.10. Jurisdiction. Except as set forth in Section 5.9, the parties hereby
irrevocably submit and consent to the nonexclusive jurisdiction of the State and Federal Courts
located in the State of New York with respect to any action or proceeding arising out of this
Agreement or any matter arising therefrom or relating thereto. In any such action or proceeding,
each of the parties waives personal service of the summons and complaint or other process and
papers therein and agrees that the service thereof may be made by mail directed to such party at
the address provided herein, service to be deemed complete seven (7) days after mailing, or as
permitted under the rules of either of said courts.
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[Signature Page Follows]
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| CHART INDUSTRIES, INC. | FR X CHART HOLDINGS, LLC | |||||
By:
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By: | |||||
Name:
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Name: | |||||
Title:
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Title: | |||||
[Signature Page to Stockholder Agreement]