Exhibit 10.4
EXECUTION COPY
EMPLOYMENT
AGREEMENT (the “ Agreement ”) dated
December 1, 2005 by and between Chart Industries, Inc. (the
“ Company ”) and Michael F. Biehl (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 two (2) year term, commencing on
December 1, 2005, so that the remaining term of employment
under this Agreement shall always be two 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
second 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.
a.
During the Employment Term, Executive shall serve as the
Company’s Chief Financial Officer and Treasurer. In such
position, Executive shall have such duties, authority and
responsibility as shall be determined from time to time by the
Board of Directors of the Company (the “ Board
”) or the Chief Executive Officer of the Company, 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 $213,200, 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 Base Salary
(the “ Target ”) based upon the achievement of
EBITDA and working capital performance targets established by the
Board within the first three months of each fiscal year during the
Employment Term. The Annual Bonus, if any, shall be paid to
Executive within two and one-half (2.5) months after the end of the
applicable fiscal year.
5.
Employee Benefits . During the Employment Term, Executive
shall be entitled to participate in the Company’s employee
benefit plans (other than annual bonus and incentive plans)
providing for health, life and disability insurance, retirement,
deferred compensation and fringe benefits, as well as any stock
option plans, as in effect from time to time (collectively “
Employee Benefits ”), on the same basis as those
benefits are generally made available to other senior executives of
the Company.
6.
Vacation . During the Employment Term, Executive shall be
entitled to four (4) weeks of paid vacation annually to be taken at
such times as chosen by Executive.
7.
Business Expenses and Perquisites .
a.
Expenses . During the Employment Term, reasonable business
expenses incurred by Executive in the performance of
Executive’s duties hereunder shall be reimbursed by the
Company in accordance with Company policies.
b.
Perquisites . During the Employment Term, Executive shall be
eligible for an automobile allowance of up to $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.
(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 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:
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(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 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 second 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
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