Exhibit 10.3.7
AMENDED AND
RESTATED
CHART INDUSTRIES,
INC.
2005 STOCK INCENTIVE
PLAN
NONQUALIFIED STOCK OPTION
AGREEMENT
THIS NONQUALIFIED STOCK OPTION
AGREEMENT (the “ Agreement ”) is entered into as
of this 2nd day of January, 2009 (the “ Grant Date
”), between Chart Industries, Inc., a Delaware corporation
(the “ Company ”), and
(the “ Participant ”).
WITNESSETH
:
WHEREAS , the Compensation Committee of the Board of
Directors of the Company (the “ Committee ”)
administers the Amended and Restated Chart Industries, Inc. 2005
Stock Incentive Plan (the “ Plan ”);
and
WHEREAS , the Committee has determined that it would be
in the best interests of the Company and its stockholders to grant
nonqualified stock options to the Participant upon the terms and
conditions set forth in this Agreement.
NOW , THEREFORE , the Company and the
Participant agree as follows:
1. Interpretation . Unless
otherwise specified in this Agreement, capitalized terms shall have
the meanings attributed to them under the Plan. The terms and
provisions of the Plan, as it may be amended from time to time, are
hereby incorporated herein by reference. In the event of a conflict
between any term or provision contained herein and a term or
provision of the Plan, the applicable terms and provisions of the
Plan will govern.
2. Grant of the Option . As
of the Grant Date, the Company grants to the Participant, under the
terms and conditions of this Agreement, the right to purchase all
or any part of an aggregate of
( ) Shares, which right will vest
over a period of time in accordance with Section 4 (the
“ Option ”), subject to adjustment as set forth
in Section 9 of the Plan. The Option is intended to be a
nonqualified stock option.
3. Option Price . The
purchase price of the Shares subject to the Option shall be, and
shall never be less than, the Fair Market Value of the Shares on
the Grant Date. The Fair Market Value of a Share on the Grant Date
is $11.00 (the “ Option Price ”). The Option
Price is subject to adjustment as described in Section 9 of
the Plan.
4. Vesting .
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a.
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Service-Based . Subject to the Participant’s continued
Employment as of such dates (except as otherwise provided herein
with respect to Retirement), the Option shall vest and become
exercisable with respect to twenty-five percent (25%) of the
Shares initially covered by the Option on each of the first,
second, third and fourth anniversaries of the Grant
Date.
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b.
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Change in Control
. In the event of a Change in
Control, subject to the Participant’s continuous Employment
from the Grant Date through the date of the Change in Control, the
Option shall, to the extent not then
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vested and not previously
canceled, immediately become fully vested and
exercisable.
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c.
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Termination
of Employment
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i.
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General
Rule . If the
Participant’s Employment is terminated for any reason other
than those reasons specifically addressed in Section 4(c), and
except as otherwise provided in Section 4(b), the Unvested
Portion of the Option shall be canceled and the Participant shall
have no further rights with respect thereto and the Vested Portion
of the Option shall remain exercisable for the period set forth in
Section 5(a) of this Agreement.
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ii.
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Death or
Disability . If the
Participant’s Employment terminates as a result of death or
Disability, the Option shall, to the extent not then vested and not
previously canceled, immediately become fully vested and
exercisable.
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iii.
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Retirement . If the Participant’s Employment
terminates as a result of Retirement, the vesting provisions of
this Agreement shall continue to apply, but without giving effect
to any requirement of continuous Employment.
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i.
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At any time,
the portion of the Option which has become vested and exercisable
as described above is referred to as the “ Vested
Portion ,” and the portion of the Option which is then
unvested is referred to as the “ Unvested Portion
.”
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ii.
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The term
“Retirement” or variations thereof means a voluntary
separation from service with the Company, its Subsidiaries and its
Affiliates, under circumstances indicative of retirement, after
attaining age 60 and completing 10 years of service with such
entities.
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iii.
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“Cause” shall mean
(i) the Participant’s 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, (ii) the Participant’s
commission of, or plea of guilty or no contest to a (x) felony
or (y) crime involving moral turpitude, (iii) willful
malfeasance or misconduct by the Participant which is demonstrably
injurious to the Company or its Subsidiaries or Affiliates,
(iv) material breach by the Participant of any
non-competition, non-solicitation or confidentiality covenants,
(v) commission by the Participant 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 (vi) any other act or course of
conduct by the
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Participant which will
demonstrably have a material adverse effect on the Company, a
Subsidiary or Affiliate’s business; and
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iv.
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“Good
Reason” shall mean, without the Participant’s consent,
(i) a substantial diminution in the Participant’s
position or duties, material adverse change in reporting lines, or
assignment of duties materially inconsistent with his position or
(ii) any reduction in the Participant’s base salary
and/or material reduction in employee benefits in the aggregate
provided to the Participant (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 thirty
(30) days following the Company’s receipt of written
notice from the Participant describing the event constituting Good
Reason.
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5. Exercise of Option
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a.
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Period of
Exercise . Subject to the
provisions of the Plan and this Agreement, the Participant (or his
or her successor, as appropriate) may exercise all or any part of
the Vested Portion of the Option at any time prior to the
earliest to occur of:
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i.
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the tenth
anniversary of the Grant Date;
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ii.
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the first
anniversary of the Participant’s termination of Employment
due to death or Disability;
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iii.
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thirty
(30) days following the date of the Participant’s
termination of Employment by the Participant without Good Reason
(other than Retirement) or by the Company or its Affiliates for
Cause; and
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iv.
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ninety
(90) days following the date of the Participant’s
termination of Employment for reasons other than Retirement or the
reasons described in Section 5(a)(ii) and 5(a)(iii)
above.
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i.
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Subject to Section 5(a), the
Vested Portion of the Option may be exercised by delivering written
notice of intent to so exercise to the Company at its principal
office; provided that , the Option may be exercised
with respect to whole Shares only. Such notice shall specify the
number of Shares for which the Option is being exercised and shall
be accompanied by full payment of the Option Price. Payment of the
Option Price may be made at the election of the Participant:
(w) in cash or its equivalent ( e.g. , by check);
(x) to the extent permitted by the Committee, in Shares having
a Fair Market Value as of the payment date equal to the aggregate
Option Price for the Shares being purchased and satisfying such
other
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requirements imposed by the
Committee, provided that such Shares have been held by the
Participant for more than six months (or such other period as
established from time to time by the Committee); (y) partially
in cash and, to the extent permitted by the Committee, partially in
such Shares; or (z) if there is a public market for the Shares
on the payment date, subject to such rules as may be established by
the Committee, through the delivery of irrevocable instructions to
a broker to sell Shares obtained upon the exercise of the Option
and to deliver promptly to the Company an amount out of the
proceeds of such sale equal to the aggregate Option Price for the
Shares being purchased. No Participant shall have any rights to
dividends or other rights of a stockholder with respect to Shares
subject to an Option
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