EXHIBIT 10.2
AGREEMENT OF SEPARATION, RELEASE, AND NONCOMPETITION
THIS AGREEMENT OF SEPARATION, RELEASE, AND NONCOMPETITION ("Agreement"), is made
and entered into by and between CHART INDUSTRIES, INC., a Delaware corporation,
having a place of business at 5885 Landerbrook Drive, Cleveland, Ohio 44124
("Company") and James R. Sadowski having a place of residence at 65 Solether
Lane, Chagrin Falls, OH 44022 ("Employee"). Company and Employee are hereinafter
collectively referred to as the "Parties" or forms thereof.
W I T N E S S E T H:
WHEREAS, Employee has been employed by the Company; and
WHEREAS, Employee's employment has been terminated effective
July 1, 2002 (the "Date of Separation"); and
WHEREAS, the Employee has an EMPLOYMENT AGREEMENT under which
employee is be entitled to severance pay and other severance benefits; and
WHEREAS, the Company and Employee wish to resolve all matters
and issues between them arising from or relating to Employee's employment by the
Company and Employee's termination from employment by the Company.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, Employee and the Company hereby agree as follows:
ARTICLE I
PAYMENTS EARNED THROUGH DATE OF SEPARATION
Section 1.1. Salary Through Date of Separation. The Company
shall pay to Employee the amount of Employee's annual salary payable through the
pay period of the Date of Separation, less federal and state withholding taxes
and other deductions required by law, as per the Company's regular payroll
practice.
Section 1.2. "Paid Time Off". The Company will pay Employee
for Employee's earned but unused vacation time of seven (7) days and other paid
time off in connection with Employee's employment with the Company through the
Date of Separation, less federal and state withholding taxes and other
deductions required by law. Such payment shall be made within seven business
days following the Effective Date of this Agreement, as set forth in (S) 6.7 of
the Agreement.
ARTICLE II
SEVERANCE PAY
Section 2.1. Severance Pay. Upon the Effective Date of this Agreement
as set forth in Section 4.4 herein, the Company shall pay Employee twelve (12)
months severance pay ($263,000) as described in this Section 2.1. This pay is
separate and independent of the pay in Section 1.1 above. Employee will be paid
bi-weekly starting with the pay period ending July 12, 2002 through the pay
period ending February 7, 2003. This amounts to 16 pays of $10,115.39 or
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a total of $161,846.24. The remaining balance of $101,153.76 will be distributed
to Employee in a lump sum within fifteen (15) days of February 7, 2003. All
amounts shall be less standard payroll deductions and/or withholdings (including
taxes and Employee contributions under benefit programs to the extent continued
pursuant to this Agreement).
Section 2.2 Calculation of Severance Pay. Any and all severance
payments shall be based on at Employee's rate immediately preceding Employee's
termination, less applicable payroll taxes and withholdings (including Employee
contributions under benefit programs to the extent continued pursuant to this
Agreement).
ARTICLE III
ADDITIONAL CONSIDERATION
Section 3.1 Additional Consideration. In addition to the
severance payments described in (S)2.1, the Company shall provide Employee with
the "Additional Consideration" described in Attachment A hereto, which is
expressly incorporated herein by reference.
Section 3.2. Adequacy of Consideration. Employee hereby agrees
and acknowledges that the Additional Consideration described in Attachment A to
this Agreement constitutes consideration that is over and above any
entitlements, severance payments or otherwise, that Employee may have by reason
of his separation from employment with the Company, and that such payments and
amounts constitute adequate consideration and are accepted in exchange for
Employee's covenants and obligations, including but not limited to Employee's
full release of all claims, as set forth in this Agreement. The Parties further
agree that Attachment A (Additional Consideration), Attachment B
(Confidentiality and Non-competition Agreement) and Attachment C (Reason for
Termination) are necessary and integral to this Agreement, and are hereby
incorporated into this Agreement by reference and made a part hereof.
Capitalized terms not otherwise defined in Attachment A, Attachment B or
Attachment C respectively, shall have the meanings given to such terms in this
Agreement.
ARTICLE IV, RELEASE OF CLAIMS
Section 4.1. General Release. In exchange for consideration
of the promises and agreements set forth herein, and for good and other valuable
consideration, the adequacy and receipt of which is hereby acknowledged by
Employee, Employee does hereby for himself and for his heirs, executors,
successors and assigns, release and forever discharge the Company, its
shareholders, subsidiaries, divisions, and all of the Company's affiliated
businesses, whether directly or indirectly related to Company, if any, together
with its and their respective officers, directors, shareholders, management,
representatives, agents, employees, successors, assigns, and attorneys, both
known and unknown, in both their personal and agency capacities (collectively,
the "Company Entities") of and from any and all claims, demands, damages,
actions or causes of action, suits, claims, charges, complaints, contracts,
whether oral or written, express or implied and promises, at law or in equity,
of whatsoever kind or nature, including but not limited to any alleged violation
of any state or federal anti-discrimination statutes or regulations, including
but not limited to Title VII of The Civil Rights Act of 1964 as amended, 42
U.S.C.(S)2000e et seq.; the Employee Retirement Income Security Act of 1974, 29
U.S.C.(S)1001 et seq.; the Americans With Disabilities Act, 42 U.S.C.(S)12101 et
seq.; any claims for breach of any express or implied contract or promise,
wrongful discharge, violation of public policy, or tort, all demands for
attorney's fees, back pay, holiday pay, vacation pay, bonus, group insurance;
any claims for reinstatement, employee benefits and claims for money, out of
pocket
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expenses (excluding those approved by Mark Ludwig), any claims for emotional
distress, defamation and humiliation, that Employee might now have or may
subsequently have against the Company Entities, whether known or unknown,
suspected or unsuspected, by reason of any matter or thing, arising out of or in
any way connected with, directly or indirectly, any acts or omissions which have
occurred prior to and on the Effective Date of this Agreement, except those
matters specifically set forth herein and except for any pension or retirement
benefits which may have vested on Employee's behalf, if any, and any rights or
claims that may not be released or waived as a matter of law.
Section 4.2. Age Discrimination in Employment Act/Older Workers Benefit
Protection Act Release. Employee waives and releases all rights, remedies,
claims and causes of action, known and unknown, he has or may have against the
Company Entities for any matter related to his employment and the termination of
that employment under the Age Discrimination in Employment Act of 1967, 29
U.S.C. (S)(S)621, et seq., as amended by the Older Worker Benefit Protection
Act, 29 U.S.C. (S) 623, by reason of any matter or thing arising out of, or in
any way connected with, directly or indirectly, any acts or omissions which have
occurred prior to and including the Effective Date of this Agreement. In other
words, by signing this Agreement, Employee will have none of the legal rights
against the aforementioned that Employee would otherwise have under these laws.
Section 4.3. Right to Consult With Counsel; Consideration
Period. The Company hereby notifies Employee of Employee's right to consult with
Employee's chosen legal counsel before signing this Agreement. The Company shall
afford, and Employee acknowledges receiving, not less than twenty-one (21)
calendar days in which to consider this Agreement to ensure that Employee's
execution of this Agreement is knowing and voluntary. In signing below, Employee
expressly acknowledges that Employee has been afforded the opportunity to take
twenty-one (21) days to consider this Agreement and that Employee's execution of
same is with full knowledge of the consequences thereof and is of Employee's own
free act and will. Notwithstanding the fact that the Company is allowing
Employee twenty-one (21) days to consider this Agreement, Employee may elect to
execute this Agreement prior to the end of such twenty-one (21) day period. If
Employee elects to execute this Agreement prior to the end of such twenty-one
(21)-day period, then, by Employee's signature below, Employee represents that
his decision to accept this shortening of the time was done knowingly and
voluntarily and was not induced by fraud, misrepresentation, or any threat to
withdraw or alter the benefits provided by the Company herein, or by the Company
providing different terms to any similarly-situated employee executing this
Agreement prior to end of such twenty-one (21) day consideration period. The
parties agree changes, whether material or immaterial, to this Agreement shall
not restart the running of the twenty-one (21)-day time period.
Section 4.4 Revocation Period. Both the Company and Employee
agree and recognize that, for a period of seven (7) calendar days following
Employee's execution of this Agreement, Employee may revoke this Agreement by
providing written notice revoking the same, within this seven (7) day period,
delivered by hand or by certified mail, addressed to Mark Ludwig, 5885
Landerbrook Drive, Cleveland, OH 44124 delivered or postmarked within such seven
(7) day period. In the event Employee so revokes this Agreement, each Party will
receive only those entitlements and/or benefits that they would have received
regardless of this Agreement.
Section 4.5. Acknowledgments. Employee acknowledges that
Employee has carefully read and fully understands all of the provisions of this
Agreement, that Employee has
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not relied on any representations of the Company or any of its representatives,
directors, officers, employees and/or agents to induce Employee to enter into
this Agreement, other than as specifically set forth herein and that Employee is
fully competent to enter into this Agreement and has not been pressured, coerced
or otherwise unduly influenced to enter into this Agreement and that Employee
has voluntarily entered into this Agreement and the same is Employee's own free
will act.
ARTICLE V
OTHER OBLIGATIONS OF EMPLOYEE
Section 5.1. Noncompetition Agreement. Employee agrees to the
Confidentiality and Noncompetition Agreement set forth in Attachment B to this
Agreement, which is expressly incorporated herein.
Section 5.2. Company Property. Upon or before execution of
this Agreement, Employee shall return all property belonging to the Company
(excluding laptop), including, but not limited to, all confidential and/or
proprietary information, keys, business equipment, computer software and/or
hardware, and technical manuals and other information.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Entire Agreement. This Agreement, together with
its Attachment A, Attachment B and Attachment C contains the entire agreement
and understanding by and between the Parties hereto and replaces and supersedes
any prior agreements (including the EMPLOYMENT AGREEMENT, dated January 24,
2001, as amended, between the Company and Employee), contracts and/or promises,
whether written or oral, with respect to the subject matters included herein.
There are no other agreements nor representations between the Parties except as
expressly provided for in this Agreement. This Agreement may not be changed
orally, but only in writing, signed by each of the Parties hereto.
Section 6.2. Warranty/Representation. Employee and the Company
each warrant and represent that, prior to and including the Effective Date of
this Agreement, no claim, demand, cause of action, or obligation which is
subject to this Agreement has been assigned or transferred to any other person
or entity, and no other person or entity has or has had any interest in any such
claims, demands, causes of action or obligations, and that each has the sole
right to execute this Agreement.
Section 6.3. Invalidity. The Parties to this Agreement agree
that, if any provision of this Agreement (including the provisions of
Attachments A, B or C) is determined by a court of last resort, or a lower court
if no appeal is taken, to be unlawful, invalid or unenforceable, the balance of
this Agreement shall remain in full force and effect. In such event the parties
agree to meet and confer for the purpose of a reaching agreement to amend the
offending provision, or, if the parties cannot agree on the terms of amendment,
all provisions shall be enforced to the extent that is determined reasonable by
the appropriate court. However, if such amendment or enforcement cannot be
achieved without materially altering the releases of claims given by Employee to
the Company, then this Agreement shall be void, and Employee
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promptly shall return all monies and other things received under this Agreement
(including its attachments).
Section 6.4. Assignment. This Agreement is personal in nature
and shall not be assigned by Employee. All payments and benefits provided
Employee herein shall be made to Employee's wife Elaine Sadowski and if not
living Employee's estate in the event of Employee's death prior to Employee's
receipt thereof. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Company, including, without limitation,
any person acquiring directly or indirectly all or substantially all of the
assets of the Company, whether by merger, consolidation, sale or otherwise (and
such successor shall thereafter be deemed the "Company" for the purposes of this
Agreement).
Section 6.5. Originals. Two (2) copies of this Agreement shall
be executed as "originals" so that both Employee and the Company may possess an
"original" fully executed document. The Parties hereto expressly agree and
recognize that each of these fully executed "originals" shall be binding and
enforceable as an original document representing the agreements set forth
herein. Headings are for convenience only and shall be given no legal effect.
Section 6.6. Jurisdiction. This Agreement, including
Attachments A and B hereto, shall be governed under the laws of the State of
Ohio, without giving effect to the conflict of law principles of such State.
Employee and the Company each agree that the state and federal courts located in
Cleveland, Ohio shall have jurisdiction in any action, suit or proceeding
against Executive or the Company based on or arising out of this Agreement
(including its Attachments) and each of Executive and the Company hereby (a)
submits to the personal jurisdiction of such courts, (b) consents to service of
process in connection with any such action, suit or proceeding and (c) waives
any other requirement (whether imposed by statute, rule of court or otherwise)
with respect to personal jurisdiction, venue or service of process.
Section 6.7. Effective Date of this Agreement. This Agreement
shall become effective only upon (a) execution of this Agreement by Employee
after the expiration of the twenty-one (21) day consideration period described
in Section 4.3 of this Agreement, unless such consideration period is shortened
as set forth therein; and (b) the expiration of the seven (7) day period for
revocation of this Agreement by Employee as described in Section 4.4 of this
Agreement. The date on which this Agreement so becomes effective is referred to
herein as the "Effective Date of this Agreement."
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CAUTION TO EMPLOYEE:
READ BEFORE SIGNING. THIS DOCUMENT CONTAINS A RELEASE OF ALL CLAIMS AGAINST THE
COMPANY ENTITIES PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
IN WITNESS WHEREOF, Employee and the Company agree as set forth above:
DATE OF EXECUTION BY EMPLOYEE: AGREED TO AND ACCEPTED BY:
9/4/02 /s/ James R. Sadowski
- -------------------------------- --------------------------------------
JAMES R. SADOWSKI
EXECUTION WITNESSED BY:
/s/ Patricia A. Switzer
--------------------------------------
DATE OF EXECUTION BY COMPANY: AGREED TO AND ACCEPTED BY
CHART INDUSTRIES, INC.
9/4/02 BY: /s/ Mark Ludwig
- -------------------------------- -----------------------------------
TITLE: Corporate Director, Human
--------------------------------
Resources
--------------------------------------
EXECUTION WITNESSED BY:
/s/ Patricia A. Switzer
--------------------------------------
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ATTACHMENT A
ADDITIONAL CONSIDERATION
In addition to the severance payments described in (S)2.1 of
the Agreement of Separation, Release, and Noncompetition (the "Agreement")
between CHART INDUSTRIES, INC., a Delaware corporation ("the Company"), and
James R. Sadowski ("Employee"), into which Agreement this Attachment A is
incorporated, the Company and Employee agree as follows:
ARTICLE I
ENHANCED SEVERANCE PAY
Section 1A. Enhanced Severance Pay. In consideration of Employee's
covenants and obligations set forth in the Agreement and the attachments
thereto, the Company shall pay Employee an additional three (3) months of
enhanced severance pay (the "Enhanced Severance Pay"). Employee acknowledges
said enhanced severance payments are over and above that to which Employee is
otherwise entitled under any employment agreement or otherwise and are being
given as additional consideration in exchange for Employee's agreement to the
terms and conditions of the Agreement (including this Attachment and Attachment
B thereto).
Section 1B. Calculation of Enhanced Severance Pay. The Enhanced
Severance Pay shall be paid to Employee as a lump sum of $65,750.00, which will
be combined with the remaining lump sum balance of the severance pay of
$101,153.76 provided for under Section 2.1 of the Agreement and paid within
fifteen (15) days of February 7, 2003. Therefore, the total amount of the lump
sum payment to be paid at such time is $166,903.76. Thus the total severance to
be paid to Employee under Section 2.1 of the Agreement and this Section 1B,
including severance pay and Enhanced Severance Pay, consists of $161,846.24 in
16 bi-weekly payments and a total of $166,903.76 in lump sum payments, for a
total not to exceed $328,750.00 in aggregate severance payments. All amounts
shall be less standard payroll deductions and/or withholdings (including taxes
and Employee contributions under benefit programs to the extent continued
pursuant to this Agreement).
ARTICLE II
BENEFITS
Section 2A. Health, Dental and Vision Benefits. For a period of 25
months following the Date of Separation, through and including July 2004, the
Company will maintain the Employee's current coverage under the Company's
health, dental and vision insurance. During such period, Employee will be
responsible to pay the normal employee share of the applicable premiums for such
coverage.
Section 2B. Other Welfare Benefits. For a period of 12 months following
the Date of Separation, through and including June 2003, life insurance coverage
will be maintained. If the Company is unable to continue Employee's existing
life insurance coverage during such 12-month period, the Company agrees to
obtain comparable life insurance coverage for Employee during such 12-month
period.
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Section 2C. Cessation of Benefits. All of the benefits referenced in
Sections 2A, 2B, 2D and 2E will cease if Employee obtains such coverage from
another employer at anytime during the respective periods of continuation. All
other Employee benefits not referenced above cease as of July 31, 2002. The
Company shall have the right to modify, amend or terminate any benefits provided
to Employee following the Date of Separation and Employee's continued
participation therein, if any, shall be subject to such modification, amendment
or termination if such modification, amendment or termination applies generally
to the then-current participants in such plan.
Section 2D. COBRA Election Health Benefits. Upon completion of the 25
month period following the Date of Separation, and effective August 1, 2004, the
Company will afford Employee the opportunity to continue Employee's coverage
under the Company's health, dental and vision insurance, at Employee's expense,
for an additional 18 months, so long as Employee timely elects (within 45 days
of August 1, 2004) to receive coverage under the federal Consolidated Omnibus
Budget Reconciliation Act, as amended ("COBRA"), Part VI of Subtitle B of Title
I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA");
and Internal Revenue Code (S) 4980(B)(f) and otherwise complies with conditions
of continuation of benefits under COBRA.
Section 2E. Outplacement Services. Company will provide an executive
full service outplacement program to Employee for up to six (6) months following
the Date of Separation. The service provider will be of Employee's own choosing
and the cost of the outplacement service will be reimbursed to employee or the
service provider, up to a maximum of $15,000. Employee can elect to receive cash
compensation in lieu of outplacement services up to a maximum of $15,000.
Section 2F. Automobile Use. Company will continue to provide Employee
with the use of the automobile assigned to Employee as of the Date of Separation
and Employee will have use of such automobile through December 31, 2002.
Employee shall return such automobile to Company in good condition, reasonable
wear and tear excepted, by December 31, 2002. From the period of October 1, 2002
and thereafter, it is the Employee's responsibility to insure the automobile
with the same limits as when insured by Chart and to name the Company as a named
insured. For any period following October 1, 2002 Employee shall be solely
responsible for any damages or claims of, or losses incurred by, third persons
as a result of Employee's possession and/or use of such automobile in the period
until Employee returns such automobile to the Company, and the Company shall
have no responsibility or liability for any such damages, claims or losses, and
Employee agrees to indemnify and reimburse the Company for any such damages,
claims or losses asserted against the Company.
Section 2G. Extension of Term of Stock Options. Effective as of the
Effective Date of this Agreement, and through an action by its Board of
Directors or any appropriate committee thereof, the Company agrees to extend the
period of time after the Date of Separation during which Employee may exercise
his stock options to acquire Company common stock, to the extent that any of
those options was exercisable on the Date of Separation, from three (3) months
after the Date of Separation (as provided absent such extension) to fifteen (15)
months after the Date of Separation (i.e., to September 30, 2003), but not later
than the expiration date of the option. Employee acknowledges that all stock
options shall expire not later than September 30,
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2003. Notwithstanding the foregoing, (a) the normal expiration date of stock
options shall not be extended, so that any stock option that would have
terminated before September 30, 2003 had Employee remained employed with the
Company until that time shall terminate on the date on which it would have
terminated had Employee remained so employed, (b) any stock option that had not
become fully exercisable before the Date of Separation shall terminate on the
Date of Separation to the extent that such option was not then exercisable, and
(c) this Section 2H shall not be interpreted to require the Company to
accelerate the exercisability of any of Employee's stock options, and except as
set forth in the first sentence of this Section 2H, the terms of Employee's
stock options shall remain unchanged. Employee acknowledges that the extension
of the period after termination of employment during which he may exercise a
stock option intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended, may cause such option not to
qualify as an incentive stock option but instead to be treated as a nonqualified
stock option. Employee consents to such extension and to the disqualification of
any such incentive stock option as a result thereof.
Section 2H. Country Club Membership Reimbursement. Reimbursement by the
Company for Employee's Country Club membership dues will be terminated as of
July 1, 2002, and Employee will have no further right to such benefit.
ACCEPTED AND AGREED TO BY EMPLOYEE:
EMPLOYEE
/s/ James R. Sadowski
--------------------------------------------
JAMES R. SADOWSKI
CHART INDUSTRIES, INC.
By: /s/ Mark Ludwig
-------------------------------------
Title: Corporate Director, Human Resources
-------------------------------------
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ATTACHMENT B
CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
FOR INDEPENDENT, VALUABLE CONSIDERATION, in the form of
payments and benefits provided for in my Agreement of Separation, Release, and
Noncompetition (the "Agreement") with CHART INDUSTRIES, INC., a Delaware
corporation (the "Company") and Attachment A thereto and more specifically
described in this Attachment B thereto, the receipt and sufficiency of which are
hereby acknowledged, I, James R. Sadowski having a place of residence at 65
Solether Lane, Chagrin Falls, OH 44022 ("Employee"), and the Company hereby
further agree as follows:
RECITALS
WHEREAS, Employee acknowledges that during his employment with the Company he
has held a position of trust and confidence and has had access to and has become
familiar with the products, methods, technology, services and procedures used by
the Company; and
WHEREAS, Employee acknowledges that the Company (1) has expended significant
time and money on promotion, advertising, and the development of goodwill and a
sound business reputation; (2) has developed a list of customers and spent time
and resources to learn the customers' needs for the Company's products and
services; (3) has entered into business relationships designed to discover
likely future customers; and further, that all of the foregoing are valuable,
special and unique assets of the Company's business, that the Company's customer
lists, including future changes to the customer lists, are confidential
information which should not be disclosed to persons outside of the Company
organization or used by Employee for his own benefit or the benefit of others;
and
WHEREAS, Employee acknowledges that the Company (1) has expended significant
time and money on technology, research and development; (2) has developed
products, processes, technologies and services, which are valuable, special and
unique assets of the Company's business; and further, that the products,
processes technologies and services, including future changes thereto, are
confidential information which should not be disclosed to persons outside of the
Company organization or used by Employee for his own benefit or the benefit of
others; and
WHEREAS, Employee recognizes that the disclosure to or use by third parties of
any of the Company's confidential or proprietary information, trade secrets, or
Employee's unauthorized use of such information would seriously harm the
Company's business and cause monetary loss that would be difficult, if not
impossible, to measure; and
WHEREAS, Employee wishes to receive the independent consideration referred to
above in exchange for the promises and covenants contained herein.
Employee and the Company AGREE as follows:
1. Independent Consideration. The independent consideration which Employee
shall be entitled to receive upon execution of the Agreement (including its
attachments) shall consist of the three (3) months of enhanced severance pay,
enhanced medical, dental, vision and life
insurance benefits, the executive outplacement services provided for in
Section 2F of Attachment A, automobile use, and the extension of the period
during which Employee can exercise certain stock options, all of which are
described in and governed by other provisions of the Agreement (including
Attachment A, ADDITIONAL CONSIDERATION). While such independent
consideration is given in exchange for Employee's covenants and agreements
under this Attachment B, such independent consideration is also given in
exchange for Employee's covenants and agreements (including releases) under
other provisions of the Agreement.
2. Confidential Information. "Confidential Information" means information
belonging to the Chart Group of a special and unique nature and value,
including, but not limited to, such matters as the Chart Group's personnel
and compensation information; accounts; trade secrets; procedures; manuals;
financial cost and sales data; supply sources and resources; contracts;
price lists, accounting and bookkeeping practices; office policies and
practices; financial information; marketing and strategic plans; business
plans; prospect names and lists; existing and potential business
opportunities; confidential reports; customer lists and contracts;
customers' needs for the Chart Group's products and services; litigation
and other legal matters; as well as information specific to the Chart
Group's products, such as source code, coding standards, programming
techniques, processes and system; computer programs, algorithms,
techniques, processes, designs, specifications, diagrams, flow charts,
ideas, systems and methods of operation of such programs; and research and
development work. As used herein, the term "Chart Group" means,
collectively, the Company and each group, division and subsidiary (whether
or not wholly owned) of the Company.
Employee acknowledges that the Company has taken reasonable measures to
preserve the secrecy of its Confidential Information, including, but not
limited to, requiring Employee to execute this Agreement in exchange for
the independent consideration provided for herein. Employee agrees that he
or she will not disclose to any other person or entity the Chart Group's
Confidential Information which Employee has learned or acquired during his
employment or use said Confidential Information for Employee's own benefit
or for the benefit of another. Upon or before the execution of the
Agreement, Employee will deliver to the Company all property and
Confidential Information, including work in progress, originals and copies
of business forms, computer files, diskettes, source codes, manuals,
including training and sales materials, catalogs, customer lists, financial
information, strategic planning information, computer equipment, office
equipment, and all other materials in Employee's possession or control
which belong to the Company or contain information subject to this
Agreement.
3. Noncompetition. Employee agrees that during the fifteen (15) month period
commencing on the date of his cessation of employment with the Company (the
"Noncompetition Period"), he will not, without the prior written consent of
the Company, either directly or indirectly, in any capacity whatsoever, (a)
solicit business from, or compete with the Chart Group for the business of,
any customer of the Chart Group by whatever method or (b) operate, control,
advise, be employed and/or engaged by, perform any consulting services for,
invest in, or otherwise become associated with any person, company or other
entity (other than the purchase of no more than 2% of the publicly traded
securities of a company whose securities are traded on a national stock
exchange) who or which, at any time during the Noncompetition Period, is or
may be in competition with, or engaged in the same or similar conduct,
activities, or business as the Chart Group was, such as the development of
and the sale of cryogenic products, equipment and services in the
geographical area in which the Chart Group maintains offices, sales agents,
or otherwise conducts business, or where the Chart Group has customers or
other persons or entities with whom the Chart Group had prior contacts. If
the Employee requests the Company in writing to waive the noncompetition
obligations of Employee under this Paragraph 3 with respect to Employee's
proposed employment with a specified competitor or potential competitor of
the Chart Group, the Company agrees not to withhold its consent to
Employee's being so employed if such employment (including the scope of the
activities in which Employee proposes to engage) were not likely to be
adverse to the economic or other business interests of the Chart Group,
provided, however, that Employee shall not be entitled to request to be
employed by Taylor-Wharton (or its successor) or any parent, subsidiary or
affiliate of Taylor-Wharton (or its successor).
4. Workforce Protection. Employee will not, during the fifteen (15) month
period commencing on the date of his cessation of employment with the
Company, directly or indirectly hire any of the Chart Group's employees, or
solicit any of the Chart Group's employees for the purpose of hiring them
or inducing them to leave their employment with the Chart Group, nor will
Employee own, manage, operate, join, control, consult with, participate in
the ownership, management, operation or control of, be employed by, or be
connected in any manner with any person or entity which engages in the
conduct proscribed by this paragraph during such fifteen (15) month period.
5. Severability. In the event that any of the provisions of this Attachment B
shall be found by a court of competent jurisdiction to be invalid or
unenforceable as written as a matter of law, the Parties hereto agree that
such court may exercise its discretion in reforming such provision(s) to
the end that Employee shall be subject to a covenant that is reasonable
under the circumstances and enforceable by the Company.
6. Acknowledgment. Employee specifically acknowledges that the covenants set
forth herein are reasonable, appropriate, and necessary as to duration,
scope, and geographic area in view of the nature of the relationship
between Employee and the Company and the investment by the Company of
significant time and resources in the training, development, and employment
of Employee. Employee warrants and represents that Employee is able to
engage in other activities for the purpose of earning a livelihood.
Employee further acknowledges that the remedy at law for any
breach of this covenant, including monetary damages to which the Company may be
entitled, will be inadequate and that the Company, its successors and/or
assigns, shall be entitled to injunctive relief against any breach without bond.
Such injunctive relief shall not be exclusive, but shall be in addition to any
other rights or remedies, which the Company may have for any such breach.
Dated this 4th day of September, 2002.
/s/ James R. Sadowski
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EMPLOYEE
CHART INDUSTRIES, INC.
By: /s/ Mark Ludwig
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Title: Corporate Director, Human Resources
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