<PAGE> 1
As filed with the Securities and Exchange Commission on July 23, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHART INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 34-1712937
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
35555 Curtis Boulevard
Eastlake, Ohio 44095
(Address of principal executive offices, including zip code)
------------------
CHART INDUSTRIES, INC. 1996 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
(Full title of the plan)
------------------
Arthur S. Holmes Copy to:
Chairman and Chief Thomas F. McKee, Esq.
Executive Officer Calfee, Halter & Griswold
Chart Industries, Inc. 1400 McDonald Investment Center
35555 Curtis Boulevard 800 Superior Avenue
Eastlake, Ohio 44095 Cleveland, Ohio 44114
(216) 946-2525 (216) 622-8200
(Name, address and telephone number, including area code, of agent for service)
------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share, issuable 75,000 $13.1875 $989.062.50 $342
upon exercise of options shares (2)
<FN>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high and
low sales price of the Common Stock of Chart Industries, Inc. reported on
the New York Stock Exchange on July 17, 1996.
(2) The 75,000 shares of Common Stock being registered are issuable upon
exercise of options to be granted pursuant to the Chart Industries, Inc.
1996 Stock Option Plan for Outside Directors.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
------------------------------------------------
The following documents of Chart Industries, Inc. (the "Company"),
previously filed with the Securities and Exchange Commission, are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and
3. The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A, effective as of December 3,
1992.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference in this Registration Statement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
--------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
---------------------------------------
Thomas F. McKee, the Company's Secretary, is a partner of Calfee,
Halter & Griswold, the Company's legal counsel.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
Section 145 of the General Corporation Law of the State of Delaware
sets forth the conditions and limitations governing the indemnification of
officers, directors and other persons.
Article VII of the Company's Certificate of Incorporation provides that
Directors of the Company are not personally liable to the Company for any breach
of fiduciary duty as a Director, except in limited circumstances.
Article VII of the Company's By-Laws provides in part that the Company
shall indemnify any Director or officer who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, either civil, criminal, administrative or investigative, by reason
of the fact that he or she is or was a Director or officer of the Company, or is
or was serving at the request of the Company, as a Director or officer of
certain other entities, against all expense, liability and loss reasonably
incurred or suffered by such person in
<PAGE> 3
connection with such action, suit or proceeding, and under certain
circumstances, whether or not the indemnified liability arises or arose from any
threatened, pending or completed action by or in the right of the Company.
Responsibility for determinations with respect to such indemnification shall be
made by the Board of Directors, by independent legal counsel or by the
stockholders of the Company.
The Company also has entered into indemnity agreements (the "Indemnity
Agreements") with its Directors and officers that expand the protection provided
to the Company's Directors and officers and are based upon sections of the
General Corporation Law of the State of Delaware and Article VII of the
Company's By-Laws that recognize the validity of additional indemnity rights
granted by agreement. The substantive content of the Indemnity Agreements and
Article VII of the By-Laws is substantially the same except that, pursuant to
the Indemnity Agreements, indemnity is expressly provided for settlements in
derivative actions and partial indemnification is permitted in the event that
the Director or officer is not entitled to full indemnification.
Both the General Corporation Law of the State of Delaware and Article
VII of the Company's By-Laws provide that the Company may maintain insurance to
cover loss incurred pursuant to liability of Directors and officers of the
Company, which insurance, if any, may cover liabilities of Directors and
officers of the Company arising under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
---------
See the Exhibit Index at Page E-1 of this Registration Statement.
ITEM 9. UNDERTAKINGS.
-------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof),
which, individually or in the aggregate,
represents a fundamental change in the
information set forth in the Registration
Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 4
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant undertakes that, for purposes of
determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to Directors, officers
and controlling persons of the Company pursuant to the
foregoing provisions described under Item 6 above, or
otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a
Director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is
asserted against the Company by such Director, officer or
controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland, State of Ohio, on July 18, 1996.
CHART INDUSTRIES, INC.
By: /s/ Arthur S. Holmes
------------------------------
Arthur S. Holmes, Chairman
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below, hereby constitutes and appoints Arthur S. Holmes, Don
A. Baines, Thomas F. McKee and Thomas A. Fullmer, or any one or more of them,
his attorneys-in-fact and agents, each with full power of substitution and
resubstitution for him in any and all capacities, to sign any or all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each of such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that each of such attorneys-in-fact and
agents or his substitute or substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on July 18, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Arthur S. Holmes
- ----------------------------------- Chairman and Chief Executive
Arthur S. Holmes Officer and a Director (Principal Executive Officer)
/s/ Don A. Baines
- ----------------------------------- Chief Financial Officer and Treasurer and a Director
Don A. Baines (Principal Financial and Accounting Officer)
/s/ Charles S. Holmes Director
- -----------------------------------
Charles S. Holmes
/s/ Lazzaro G. Modigliani Director
- -----------------------------------
Lazzaro G. Modigliani
/s/ Richard J. Campbell Director
- -----------------------------------
Richard J. Campbell
</TABLE>
II-4
<PAGE> 6
EXHIBIT 5.1
July 18, 1996
Chart Industries, Inc.
35555 Curtis Boulevard
Eastlake, Ohio 44095
We are familiar with the proceedings taken and proposed to be
taken by Chart Industries, Inc., a Delaware corporation (the "Company"), with
respect to 75,000 shares of Common Stock, par value $.01 per share (the "Outside
Directors Shares"), of the Company to be offered and sold from time to time
pursuant to the Company's 1996 Stock Option Plan for Outside Directors (the
"Outside Directors Plan"). As counsel for the Company, we have assisted in the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission to effect the registration of the Outside Directors Shares under the
Securities Act of 1933, as amended.
In this connection, we have examined the Certificate of
Incorporation and the By-Laws of the Company, each as currently in effect,
records of proceedings of the Board of Directors and stockholders of the
Company, and such other records and documents as we have deemed necessary or
advisable to render the opinion contained herein. Based upon our examination and
inquiries, we are of the opinion that the Outside Directors Shares, when offered
and sold pursuant to the terms and conditions of the Outside Directors Plan,
will be legally issued, fully paid and nonassessable.
We are attorneys licensed to practice law in the State of
Ohio. The opinion expressed herein is limited solely to the laws of the State of
Ohio and the General Corporation Law of the State of Delaware and we express no
opinion under the laws of any other jurisdiction.
This opinion is delivered to you solely in connection with the
filing of the Registration Statement with respect to the Outside Directors
Shares, and this letter and the opinion stated herein may not be relied upon for
any other purpose or by any persons other than Directors and officers of the
Company.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD
II-5
<PAGE> 7
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Registration Statement (Form S-8) pertaining to the Chart Industries, Inc. 1996
Stock Option Plan for Outside Directors of our report dated February 6, 1996
with respect to the consolidated financial statements of Chart Industries, Inc.
included in the Annual Report (Form 10-K) for the year ended December 31, 1995.
ERNST & YOUNG LLP
Cleveland, Ohio
July 19, 1996
II-6
<PAGE> 8
EXHIBIT 23.2
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their
opinion filed as Exhibit 5.1 to this Registration Statement.
II-7
<PAGE> 9
EXHIBIT 24.1
CHART INDUSTRIES, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Chart Industries, Inc.
hereby constitutes and appoints Arthur S. Holmes, Don A. Baines, Thomas F. McKee
and Thomas A. Fullmer, or any one or more of them, its attorneys-in-fact and
agents, each with full power of substitution and resubstitution for it in any
and all capacities, to sign any or all amendments or post-effective amendments
to this Registration Statement, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each of such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary in connection with such matters and hereby ratifying and confirming
all that each of such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at
Cleveland, Ohio on July 18, 1996.
CHART INDUSTRIES, INC.
By: /s/ Arthur S. Holmes
-------------------------------------
Arthur S. Holmes, Chairman
and Chief Executive Officer
II-8
<PAGE> 10
EXHIBIT 24.1
(Continued)
CHART INDUSTRIES, INC.
CERTIFIED RESOLUTION
I, THOMAS F. McKEE, Secretary of Chart Industries, Inc., a
Delaware corporation (the "Company"), do hereby certify that the following is a
true copy of a resolution adopted by the Board of Directors on May 2, 1996, and
that the same has not been changed and remains in full force and effect.
RESOLVED, that Arthur S. Holmes, Don A. Baines, Thomas F.
McKee and Thomas A. Fullmer, be, and each of them hereby is, appointed as the
attorney of Chart Industries, Inc., with full power of substitution and
resubstitution for and in the name, place and stead of the Company to sign,
attest and file a Registration Statement on Form S-8, or any other appropriate
form that may be used from time to time, with respect to the issue, sale and
grant of the Outside Directors Shares, and any and all amendments and exhibits
to such Registration Statement, any and all applications or other documents to
be filed with the Securities and Exchange Commission or any securities exchange
pertaining to the listing thereon of the Outside Directors Shares covered by
such Registration Statement or pertaining to such registration, and any and all
applications or other documents to be filed with any governmental or private
agency or official relative to the registration of the Outside Directors Shares,
with full power and authority to do and perform any and all acts and things
whatsoever requisite and necessary to be done in the premises, hereby ratifying
and approving the acts of such attorneys or any such substitute or substitutes
and, without implied limitation, including in the above the authority to do the
foregoing things on behalf of the Company in the name of the person so acting or
on behalf and in the name of any duly authorized officer of the Company; and the
Chairman and Chief Executive Officer and the Chief Financial Officer and
Treasurer of the Company be, and each of them hereby is, authorized for and on
behalf of the Company to execute a Power of Attorney evidencing the foregoing
appointment.
/s/ Thomas F. McKee
--------------------------------
Thomas F. McKee, Secretary
Dated: July 18, 1996
II-9
<PAGE> 11
CHART INDUSTRIES, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION SEQUENTIAL
NO. PAGE
<S> <C> <C>
4.1 Specimen certificate of the Company's Common Stock. (A)
4.2 Amended and Restated Certificate of Incorporation of the Company as (B)
filed with the Secretary of State of Delaware on December 3, 1992.
4.3 Amended and Restated By-Laws of the Company. (B)
4.4 Credit Agreement by and among the Company and National City Bank, as (C)
agent.
5.1 Opinion of Calfee, Halter & Griswold as to the validity of the securities
being offered. (See page II-6 of this Registration Statement.)
23.1 Consent of Ernst & Young. (See page II-7 of this Registration
Statement.)
23.2 Consent of Calfee, Halter & Griswold. (See page II-8 of this Registration
Statement.)
24.1 Power of Attorney and related certified resolution. (See pages II-9 and
II-10 of this Registration Statement.)
99.1 1996 Stock Option Plan for Outside Directors of the Company.
<FN>
- ---------------------
(A) Incorporated herein by reference to the appropriate exhibit to the Company's Registration Statement on
Form S-1 declared effective on December 3, 1992 (Reg. No. 33-52754).
(B) Incorporated herein by reference to the appropriate exhibit to the
Company's Form 10-K Annual Report for the year ended December 31, 1993.
(C) Incorporated herein by reference to the appropriate exhibit to the
Company's Form 10-K Annual Report for the year ended December 31, 1994.
</TABLE>
E-1
<PAGE> 1
Exhibit 99.1
------------
CHART INDUSTRIES, INC.
1996 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
Chart Industries, Inc., hereinafter referred to as the "Company,"
hereby adopts a stock option plan for eligible Directors of the Company
(hereinafter referred to sometimes as "Optionees") pursuant to the following
terms and provisions:
1. PURPOSE OF THE PLAN. The purpose of this plan, hereinafter referred
to as the "Plan," is to provide additional incentive to those Directors of the
Company who are not employees of the Company or any of its subsidiaries or
affiliates by encouraging them to acquire a new or an additional share ownership
in the Company, thus increasing their proprietary interest in the Company's
business and providing them with an increased personal interest in the Company's
continued success and progress. These objectives will be promoted through the
grant of options to acquire Common Stock, par value $.01 per share (the "Common
Stock"), of the Company pursuant to the terms of the Plan. Only those Directors
who meet the qualifications stated above are eligible for and shall receive
options under this Plan.
2. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on
February 8, 1996, subject to the approval of the Plan by holders of a majority
of the outstanding shares of voting capital stock of the Company which is
present and entitled to vote thereon at a meeting or otherwise. In the case that
the Company's stockholders have not approved the Plan on or before February 8,
1997, the Plan and any options granted hereunder shall be null and void.
3. SHARES SUBJECT TO THE PLAN. The shares to be issued upon the exercise
of the options granted under the Plan shall be shares of Common Stock of the
Company. Either treasury or authorized and unissued shares of Common Stock, or
both, as the Board of Directors shall from time to time determine, may be so
issued. No shares of Common Stock which are subject of any lapsed, expired or
terminated options may be made available for reoffering under the Plan. If an
option granted under this Plan is exercised pursuant to the terms and conditions
of subsection 5(b), any shares of Common Stock which are the subject thereof
shall not thereafter be available for reoffering under the Plan.
Subject to the provisions of the next succeeding paragraph of this
Section 3, the aggregate number of shares of Common Stock for which options may
be granted under the Plan shall be Seventy-Five Thousand (75,000) shares of
Common Stock.
<PAGE> 2
In the event that subsequent to the date of effectiveness of the Plan,
the Common Stock should, as a result of a stock split, stock dividend,
combination or exchange of shares, exchange for other securities,
reclassification, reorganization, redesignation, merger, consolidation,
recapitalization or other such change, be increased or decreased or changed into
or exchanged for a different number or kind of shares of stock or other
securities of the Company or of another corporation, then (i) there shall
automatically be substituted for each share of Common Stock subject to an
unexercised option (in whole or in part) granted under the Plan, each share of
Common Stock available for additional grants of options under the Plan and each
share of Common Stock made available for grant to each eligible Director
pursuant to Section 4 hereof, the number and kind of shares of stock or other
securities into which each outstanding share of Common Stock shall be changed or
for which each such share of Common Stock shall be exchanged, (ii) the option
price per share of Common Stock or unit of securities shall be increased or
decreased proportionately so that the aggregate purchase price for the
securities subject to the option shall remain the same as immediately prior to
such event and (iii) the Board shall make such other adjustments as may be
appropriate and equitable to prevent enlargement or dilution of option rights.
Any such adjustment may provide for the elimination of fractional shares.
4. GRANT OF OPTIONS.
(a) Automatic Grants. Subject to the terms of the Plan (including
without limitation the receipt of stockholder approval contemplated by Section 2
hereof), each eligible Director as of February 8, 1996 shall be granted a
non-qualified stock option for 5,000 shares of Common Stock effective as of
February 8, 1996. Each eligible Director first appointed or elected to the Board
of Directors after the effective date of the Plan shall be granted a
non-qualified stock option to purchase 5,000 shares of Common Stock as of the
date of such appointment or election. In addition, subject to the terms of the
Plan, each eligible Director shall be granted a non-qualified stock option for
5,000 shares of Common Stock on the date of the Company's Annual Meeting of
Stockholders, beginning in 1997. Such grants shall occur automatically without
any further action by the Board of Directors.
(b) Option Price. The price at which each share of Common Stock
may be purchased pursuant to an option granted under the Plan shall be equal to
the "fair market value" (as determined pursuant to Section 7) for each such
share as of the date on which the option is granted (the "Date of Grant"), but
in no event shall such price be less than the par value of such shares of Common
Stock. Anything contained in this subsection (b) to the contrary
notwithstanding, in the event that the number of shares of Common Stock subject
to any option is adjusted pursuant to Section 3, a corresponding adjustment
shall be made in the price at which the shares of Common Stock subject to such
option may thereafter be purchased.
<PAGE> 3
(c) Duration of Options. Each option granted under the Plan shall
expire and all rights to purchase shares of Common Stock pursuant thereto shall
cease on the date (the "Expiration Date") which shall be the tenth anniversary
of the Date of Grant of such option.
(d) Vesting of Options. Each option granted under the Plan shall
become fully vested and exercisable on the first anniversary of the Date of
Grant.
5. OPTION PROVISIONS.
(a) Limitation on Exercise and Transfer of Options. Only
the Director to whom the option is granted may exercise the same except where a
guardian or other legal representative has been duly appointed for such Director
and except as otherwise provided in the case of such Director's death. No option
granted hereunder shall be transferable otherwise than by the Last Will and
Testament of the Director to whom it is granted or, if the Director dies
intestate, by the applicable laws of descent and distribution. No option granted
hereunder may be pledged or hypothecated, nor shall any such option be subject
to execution, attachment or similar process.
(b) Exercise of Option. Each option granted hereunder may be
exercised in whole or in part (to the maximum extent then exercisable) from time
to time during the option period, but this right of exercise shall be limited to
whole shares. Options shall be exercised by the Optionee (i) giving written
notice to the Treasurer of the Company at its principal business office, by
certified mail, return receipt requested, of intention to exercise the same and
the number of shares with respect to which the Option is being exercised (the
"Notice of Exercise of Option") accompanied by full payment of the purchase
price in cash or, with the consent of the Board of Directors, in whole or in
part in shares of Common Stock having a fair market value on the date the option
is exercised equal to that portion of the purchase price for which payment in
cash is not made and (ii) making appropriate arrangements with the Company with
respect to income tax withholding, as required, which arrangements may include,
in lieu of other withholding arrangements, (a) the Company withholding from
issuance to the Optionee such number of shares of Common Stock otherwise
issuable upon exercise of the option as the Company and the Optionee may agree;
provided that such Optionee has had on file with the Board of Directors, for at
least six (6) months prior thereto, an effective standing election to satisfy
said Optionee's tax withholding obligations in such a fashion, which election
form by its terms shall not be revocable or amendable for at least six (6)
months or (b) with the consent of the Board of Directors, the Optionee's
delivery to the Company of shares of Common Stock having a fair market value on
the date the option is exercised equal to that portion of the withholding
obligation for which payment in cash is not made. Such Notice of Exercise of
Option shall be deemed delivered upon deposit into the mails.
<PAGE> 4
(c) Termination of Directorship. If the Optionee ceases to be a
Director of the Company, his or her option shall terminate three (3) months
after the effective date of termination of his or her directorship and neither
he or she nor any other person shall have any right after such date to exercise
all or any part of such option. If the termination of the directorship is due to
death, then the option may be exercised within three (3) months after the
Optionee's death by the Optionee's estate or by the person designated in the
Optionee's Last Will and Testament or to whom transferred by the applicable laws
of descent and distribution (the "Personal Representative"). Notwithstanding the
foregoing, in no event shall any option be exercisable after the expiration of
the option period and not to any greater extent than the Optionee would have
been entitled to exercise the option at the time of death.
(d) Acceleration of Exercise of Options in Certain Events.
Notwithstanding anything in the foregoing to the contrary, in the event of a
"change in control" the eligible Director shall have the immediate right and
option (notwithstanding the provisions of Section 4) to exercise the option with
respect to all shares of Common Stock covered by the option, which exercise, if
made, shall be irrevocable. The term "change in control" shall include, but not
be limited to: (i) the first purchase of shares pursuant to a tender offer or
exchange (other than a tender offer or exchange by the Company) for all or part
of the Company's shares of any class of common stock or any securities
convertible into such common stock; (ii) the receipt by the Company of a
Schedule 13D or other advice indicating that a person is the "beneficial owner"
(as that term is defined in Rule 13d-3 under the Securities Exchange Act of
1934) of twenty percent (20%) or more of the Company's shares of capital stock
calculated as provided in paragraph (d) of said Rule 13d-3, other than persons
who are presently "beneficial owners" of at least five percent (5%) or more of
the Company's Common Stock as of the effective date of the Plan; (iii) the date
of approval by stockholders of the Company of an agreement providing for any
consolidation or merger of the Company in which the Company will not be the
continuing or surviving corporation or pursuant to which shares of capital
stock, of any class or any securities convertible into such capital stock, of
the Company would be converted into cash, securities, or other property, other
than a merger of the Company in which the holders of shares of all classes of
the Company's capital stock immediately prior to the merger would have the same
proportion of ownership of common stock of the surviving corporation immediately
after the merger; (iv) the date of the approval by stockholders of the Company
of any sale, lease, exchange, or other transfer (in one transaction or a series
of related transaction) of all or substantially all the assets of the Company;
or (v) the adoption of any plan or proposal for the liquidation (but not a
partial liquidation) or dissolution of the Company.
(e) Option Agreements. Options granted under the Plan
shall be subject to the further terms and provisions of an Option
Agreement, a copy of which is attached hereto as Exhibit A, the
<PAGE> 5
execution of which by each Optionee shall be a condition to the receipt of an
option.
6. INVESTMENT REPRESENTATION; APPROVALS AND LISTING. The options
to be granted hereunder shall be further conditioned upon receipt of the
following investment representation from the Optionee:
"I further agree that any shares of Common Stock of Chart
Industries, Inc. which I may acquire by virtue of this option
shall be acquired for investment purposes only and not with a
view to distribution or resale; provided, however, that this
restriction shall become inoperative in the event the said shares
of Common Stock subject to this option shall be registered under
the Securities Act of 1933, as amended, or in the event Chart
Industries, Inc. is otherwise satisfied that the offer or sale of
the shares of Common Stock subject to this option may be lawfully
made without registration of the said shares of Common Stock
under the Securities Act of 1933, as amended."
The Company shall not be required to issue any certificate or certificates for
shares of Common Stock upon the exercise of an option granted under the Plan
prior to (i) the obtaining of any approval from any governmental agency which
the Company shall, in its sole discretion, determine to be necessary or
advisable, (ii) the admission of such shares of Common Stock to listing on any
national securities exchange on which the Common Stock may be listed, (iii) the
completion of any registration or other qualification of the shares of Common
Stock under any state or federal law or ruling or regulations of any
governmental body which the Company shall, in its sole discretion, determine to
be necessary or advisable or the determination by the Company, in its sole
discretion, that any registration or other qualification of the shares of Common
Stock is not necessary or advisable and (iv) the obtaining of an investment
representation from the Optionee in the form stated above or in such other form
as the Company, in its sole discretion, shall determine to be adequate.
7. GENERAL PROVISIONS. For all purposes of this Plan the fair market
value of a share of Common Stock shall be determined as follows: so long as the
Common Stock of the Company is listed upon an established stock exchange or
exchanges such fair market value shall be determined to be the highest closing
price of a share of such Common Stock on such stock exchange or exchanges on the
date the option is granted (or the date the shares of Common Stock are tendered
as payment, in the case of determining fair market value for that purpose) or if
no sale of such Common Stock shall have been made on any stock exchange on that
day, then on the closest preceding day on which there was a sale of such Common
Stock; and during any period of time as such Common Stock is not listed upon an
established stock exchange the fair market value per share shall be the mean
between dealer "Bid" and "Ask" prices of such Common Stock in the
over-the-counter market on the day the option is granted (or the day the shares
of Common Stock are tendered as
<PAGE> 6
payment, in the case of determining fair market value for that purpose), as
reported by the National Association of Securities Dealers, Inc.
The liability of the Company under the Plan and any distribution of
Common Stock made hereunder is limited to the obligations set forth herein with
respect to such distribution and no term or provision of the Plan shall be
construed to impose any liability on the Company in favor of any person with
respect to any loss, cost or expense which the person may incur in connection
with or arising out of any transaction in connection with the Plan, including,
but not limited to, any liability to any federal, state, or local authority
and/or any securities regulatory authority.
Nothing in the Plan or in any option agreement shall confer upon any
Optionee any right to continue as a Director of the Company, or to be entitled
to any remuneration or benefits not set forth in the Plan or such option.
Nothing contained in the Plan or in any option agreement shall be
construed as entitling any Optionee to any rights of a stockholder as a result
of the grant of an option until such time as shares of Common Stock are actually
issued to such Optionee pursuant to the exercise of an option.
The Plan may be assumed by the successors and assigns of the Company.
The Plan shall not be amended more than once every six (6) months,
other than to comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act, or the rules thereunder.
The cash proceeds received by the Company from the issuance of Common
Stock pursuant to the Plan will be used for general corporate purposes or in
such other manner as the Board of Directors deems appropriate.
The expense of administering the Plan shall be borne by the Company.
The captions and section numbers appearing in the Plan are inserted
only as a matter of convenience. They do not define, limit, construe or describe
the scope or intent of the provisions of the Plan.
8. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years from
the date of its adoption by the Board of Directors of the Company and thereafter
no options shall be granted hereunder. All options outstanding at the time of
termination of the Plan shall continue in full force and effect in accordance
with and subject to their terms and the terms and conditions of the Plan.
<PAGE> 7
9. TAXES. Appropriate provisions shall be made for all taxes required to
be withheld and/or paid in connection with the options or the exercise thereof,
and the transfer of shares of Common Stock pursuant thereto, under the
applicable laws or other regulations of any governmental authority, whether
federal, state, or local and whether domestic or foreign.
10. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Delaware and any applicable federal
law.
11. VENUE. The venue of any claim brought hereunder by an eligible
Director shall be Cleveland, Ohio.
12. CHANGES IN GOVERNING RULES AND REGULATIONS. All references herein to
the Internal Revenue Code, or sections thereof, or to rules and regulations of
the Department of Treasury or of the Securities and Exchange Commission, shall
mean and include the Code sections thereof and such rules and regulations as are
now in effect or as they may be subsequently amended, modified, substituted or
superseded.
13. REPLACEMENT OF 1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS. Upon
approval of the Plan by the holders of voting capital stock as set forth in
Section 2, no further grants of options under the 1995 Stock Option Plan for
Outside Directors shall be made.
