EX-10.3



 









Exhibit 10.3




EXECUTION COPY




EMPLOYMENT AGREEMENT




Samuel F. Thomas




          EMPLOYMENT AGREEMENT (the “Agreement”) dated November 23, 2005 by and between Chart
Industries, Inc. (the “Company”) and Samuel F. Thomas (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 three (3) year term, commencing on November 23, 2005, so
that the remaining term of employment under this Agreement shall always be three years (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 third 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 Executive Officer.
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”), which
duties, authority and responsibility are consistent with his existing position with the Company.
If requested, Executive shall also serve as a member of the Board without additional compensation.



               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 $400,000, payable in regular installments in accordance with the Company’s usual payment
practices. Executive shall be entitled to such









 



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increases in Executive’s base salary, if any, as
may be determined from time to time in the sole discretion of the Board. 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 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 Executive’s “annual bonus target” (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. Executive’s “annual
bonus target” is $440,000 for calendar year 2006. Executive shall be entitled to such increases in
Executive’s “annual bonus target”, if any, as may be determined from time to time in the sole
discretion of the Board. 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 five (5)
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 $1,000 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 “Disability”). Any
question as to the existence of the Disability of Executive as to which Executive and the









 



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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 claims against the
Company and its affiliates in a form reasonably acceptable to the









 



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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; provided that
during any portion of the Severance Period beyond eighteen (18) months, to the extent
coverage under the Company’s group health plans is not permissible under the terms of
such plans, the Company may, in lieu of providing such coverage, pay the Executive an
amount equal to the premium subsidy the Company otherwise would have paid on the
Executive’s behalf for such coverage during the balance of the Severance Period.



          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 third 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









 



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reasonable detail the
facts and circumstances claimed to provide a basis for termination of employment under the
provision so indicated.



               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 three (3) years 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;










 



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	 	(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
	 
	 	(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 8 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









 



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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 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









 



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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 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.









 



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               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, 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.









 



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               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 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 Corporate Centre Drive, Suite 300

Garfield Heights, Ohio 44125

Facsimile: (440) 753-1491

Attention: Chief Financial Officer and

                    Secretary and Vice President — Human Resources

If to Executive:



Samuel F. Thomas

115 Gill Road

Haddonfield, New Jersey 08033



Or 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 supersedes 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 including, without limitation, the employment agreement dated October 6, 2003.



               l. Cooperation. Executive shall provide Executive’s reasonable cooperation in
connection with any action or









 



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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.



               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]










 



13




     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.



	 	 	 	 	 
	CHART INDUSTRIES, INC.	 	SAMUEL F. THOMAS
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Michael F. Biehl	 	/s/ Samuel F. Thomas
	 	 	 
	 
	 	 	 	 
	By:

	 	Michael F. Biehl	 	 
	Title:

	 	Chief Financial Officer and treasurer