<PAGE> 1
As filed with the Securities and Exchange Commission on July 31, 1997
Registration No. 333-
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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)
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CHART INDUSTRIES, INC. 1997 STOCK OPTION AND INCENTIVE PLAN
CHART INDUSTRIES, INC. 1997 STOCK BONUS PLAN
(Full Title of the Plans)
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Arthur S. Holmes
Chairman and Chief Executive Officer
Chart Industries, Inc.
35555 Curtis Boulevard
Eastlake, Ohio 44095
(Name and Address of Agent for Service)
(216) 946-2525
(Telephone Number, including Area Code, of Agent for Service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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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
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<C> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 525,000 (2) $18.00 $9,450,000 $2,864.00
- -----------------------------------------------------------------------------------------------
<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 prices of the Common
Stock of Chart Industries, Inc. reported on the New York Stock Exchange on July 29, 1997.
(2) Of the shares of Common Stock registered hereby, 375,000 shares are issuable pursuant to
the Chart Industries, Inc. 1997 Stock Option and Incentive Plan, and 150,000 shares are
issuable pursuant to the Chart Industries, Inc. 1997 Stock Bonus Plan.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Chart Industries, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997;
(3) The Company's Current Report on Form 8-K dated May 1, 1997; and
(4) 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, dated October 2, 1992 (File
No. 1-11442), and any amendments and reports filed for the
purpose of updating that description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all the securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such documents,
other than the portions of such documents which by statute, by designation in
such documents or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
Any statement contained in documents 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.
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<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") sets forth the conditions and limitations governing the indemnification
of officers, directors and other persons.
Article VII of the Company's Amended and Restated 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 Amended and Restated 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 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 DGCL
and Article VII of the Company's ByLaws 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 DGCL 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.
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<PAGE> 4
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, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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, Form S-8, or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Sections 13 or 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.
(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.
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<PAGE> 5
(b) The undersigned Registrant hereby 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant 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 Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant 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.
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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 this 29th day of July,
1997.
CHART INDUSTRIES, INC.
By: /s/ Arthur S. Holmes
__________________________________________
Arthur S. Holmes
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 29, 1997.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ Arthur S. Holmes
- ------------------------------------- Chairman & Chief Executive Officer
Arthur S. Holmes and a Director (Principal Executive
Officer)
/s/ Don A. Baines
- ------------------------------------- Chief Financial Officer, Treasurer and
Don A. Baines a Director (Principal Financial Officer
and Principal Accounting Officer)
/s/ Richard J. Campbell
- ------------------------------------- Director
Richard J. Campbell
/s/ Lazzaro G. Modigliani
- ------------------------------------- Director
Lazzaro G. Modigliani
</TABLE>
II-6
<PAGE> 7
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.
4.2 Amended and Restated By-Laws of the Company, incorporated herein
by reference to Exhibit 3.2 to the Company's Annual Report on Form
10-K for the year ended December 31, 1992.
4.3 Specimen certificate for the Common Stock, par value $.01 per
share, of the Company, incorporated herein by reference to Exhibit
4.1 to Amendment No. 1 to the Company's Registration Statement on
Form S-1 (Registration No. 33-52754).
4.4 Chart Industries, Inc. 1997 Stock Option and Incentive Plan.
4.5 Chart Industries, Inc. 1997 Stock Bonus Plan.
5.1 Opinion of Calfee, Halter & Griswold LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Calfee, Halter & Griswold LLP, included in Exhibit 5.1.
E-1
<PAGE> 1
EXHIBIT 4.4
CHART INDUSTRIES, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
SECTION 1. PURPOSE
The Chart Industries, Inc. 1997 Stock Option and Incentive Plan, as the
same may be amended (the "Plan"), is designed to foster the long-term growth and
performance of the Company by: (a) enhancing the Company's ability to attract
and retain highly qualified Directors and employees; (b) motivating Directors
and employees to serve and promote the long-term interests of the Company and
its stockholders through stock ownership and performance-based incentives; and
(c) providing the Company with flexibility to provide stock-based incentives to
consultants whose services are anticipated to promote the Company's long-term
business objectives. To achieve this purpose, the Plan provides authority for
the grant of Stock Options and Stock Appreciation Rights.
SECTION 2. DEFINITIONS
(a) "Acquisition Consideration" shall be as defined in Section 12
hereof.
(b) "Affiliate" shall have the meaning ascribed to that term in Rule
12b-2 promulgated under the Exchange Act.
(c) "Award" shall mean the grant of Stock Options and Stock
Appreciation Rights under this Plan.
(d) "Award Agreement" shall mean any agreement between the Company
and a Participant that sets forth terms, conditions, and restrictions applicable
to an Award.
(e) "Board of Directors" shall mean the Board of Directors of the
Company.
(f) "Change in Control" shall include, but not be limited to: (i) the
first purchase of shares by a Third Party 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 Common Stock of any class or any securities convertible into such
Common Stock; (ii) the receipt by the Company of a Schedule 13D or other advice
indicating that a Third Party is the "beneficial owner" (as that term is defined
in Rule 13d-3 promulgated under the Exchange Act) of 50 percent (50%) or more of
the Company's Common Stock calculated as provided in paragraph (d) of said Rule
13d-3; (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 common
stock of
<PAGE> 2
all classes of the Company 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 transactions) of all or substantially all the assets of the Company;
(v) the adoption of any plan or proposal for the liquidation (but not a partial
liquidation) or dissolution of the Company; or (vi) such other event as the
Committee shall in its sole and absolute discretion, deem to be a "Change in
Control" for purposes of this Plan or any Notice of Award or Award Agreement
entered into pursuant hereto. The manner of application and interpretation of
the foregoing provisions shall be determined by the Committee in its sole and
absolute discretion.
(g) "Code" shall mean the Internal Revenue Code of 1986, or any law
that supersedes or replaces it, as amended from time to time.
(h) "Committee" shall mean the Compensation Committee of the Board of
Directors, or any other committee of the Board of Directors that the Board of
Directors authorizes to administer this Plan. The Committee will be constituted
in a manner that satisfies the "non-employee director" standard set forth in
Rule 16b-3 and the "outside director" requirements of Section 162(m) of the
Code.
(i) "Common Stock" shall mean shares of Common Stock, $.01 par value,
of Chart Industries, Inc., including authorized and unissued shares and treasury
shares.
(j) "Company" shall mean Chart Industries, Inc., a Delaware
corporation, and its direct and indirect subsidiaries.
(k) "Director" shall mean a director of Chart Industries, Inc.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934,
and any law that supersedes or replaces it, as amended from time to time.
(m) "Fair Market Value" of Common Stock shall mean the value of the
Common Stock determined by the Committee, or pursuant to rules established by
the Committee on a basis consistent with regulations under the Code.
(n) "Incentive Stock Option" shall mean a Stock Option that meets the
requirements of Section 422 of the Code.
(o) "Notice of Award" shall mean any notice by the Committee to a
Participant that advises the participant of the grant of an Award or sets forth
terms, conditions, and restrictions applicable to an Award.
(p) "Participant" shall mean any person to whom an Award has been
granted under this Plan.
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<PAGE> 3
(q) "Person" shall mean an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a governmental authority.
(r) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the Exchange
Act, or any rule that supersedes or replaces it, as amended from time to time.
(s) "Stock Appreciation Right" shall mean an Award granted pursuant
to Section 6(b)(i) hereof.
(t) "Stock Equivalent Unit" shall mean an Award that is valued by
reference to the value of shares of Common Stock.
(u) "Stock Option" shall mean an Award granted pursuant to Section
6(b)(ii) hereof.
(v) "Third Party" shall mean any person, group or entity other than
Arthur S. Holmes or Charles S. Holmes.
SECTION 3. ELIGIBILITY
All Directors and employees of, and consultants to, the Company and
its Affiliates, are eligible for the grant of Awards. The selection of any such
persons to receive Awards will be within the discretion of the Committee. More
than one Award may be granted to the same person.
Notwithstanding the foregoing, (i) no member of the Committee shall be
eligible to receive Awards under the Plan during the period of his or her
service thereon and (ii) any individual that renounces in writing any right that
he or she may have to receive Awards under the Plan shall not be eligible to
receive any Awards hereunder.
SECTION 4. SHARES OF COMMON STOCK AVAILABLE FOR AWARDS; ADJUSTMENT
(a) Number of Shares of Common Stock. The aggregate number of shares of
Common stock that may be subject to Awards granted under this Plan during the
term of this Plan will be equal to 250,000 shares of Common Stock, subject to
any adjustments made in accordance with the terms of this Section 4.
The assumption of obligations in respect of awards granted by an
organization acquired by the Company, or the grant of Awards under this Plan in
substitution for any such awards, will not reduce the number of shares of Common
Stock available in any fiscal year for the grant of Awards under this Plan.
Shares of Common Stock subject to an Award that is forfeited, terminated,
or canceled without having been exercised (other than shares of Common Stock
subject to a Stock Option that is canceled upon the exercise of a related Stock
Appreciation Right) will again be available for grant under this Plan, without
reducing the number of shares of
3
<PAGE> 4
Common Stock available in any fiscal year for grant of Awards under this Plan,
except to the extent that the availability of those shares of Common Stock would
cause this Plan or any Awards granted under this Plan to fail to qualify for the
exemption provided by Rule 16b-3.
(b) No Fractional Shares. No fractional shares of Common Stock will be
issued, and the Committee will determine the manner in which the value of
fractional shares of Common Stock will be treated.
(c) Adjustment. In the event of any change in the Common Stock by reason
of a merger, consolidation, reorganization, recapitalization, or similar
transaction, including any transaction described under Section 424(a) of the
Code, or in the event of a stock dividend, stock split, or distribution to
stockholders (other than normal cash dividends), the Committee will have
authority to adjust, in any manner that it deems equitable, the number and class
of shares of Common Stock subject to outstanding Awards, the exercise price
applicable to outstanding Awards, and the Fair Market Value of the shares of
Common Stock and other value determinations applicable to outstanding Awards,
including as may be allowed or required under Section 424(a) of the Code.
SECTION 5. ADMINISTRATION
(a) Committee. This Plan will be administered by the Committee. The
Committee will, subject to the terms of this Plan, have the authority to: (i)
select the eligible Directors, employees and consultants who will receive
Awards; (ii) grant Awards; (iii) determine the number and types of Awards to be
granted to eligible Directors, employees and consultants; (iv) determine the
terms, conditions, vesting periods, and restrictions applicable to Awards,
including timing and price; (v) adopt, alter, and repeal administrative rules
and practices governing this Plan; (vi) interpret the terms and provisions of
this Plan and any Awards granted under this Plan, including, where applicable,
determining the method of valuing any Award and certifying as to the
satisfaction of such Awards; (vii) prescribe the forms of any Notices of Award,
Award Agreements, or other instruments relating to Awards; and (viii) otherwise
supervise the administration of this Plan.
(b) Delegation. The Committee may delegate any of its authority to any
other person or persons that it deems appropriate, provided the delegation does
not cause this Plan or any Awards granted under this Plan to fail to qualify for
the exemption provided by Rule 16b-3.
(c) Decisions Final. All decisions by the Committee, and by any other
Person or Persons to whom the Committee has delegated authority, to the extent
permitted by law, will be final and binding on all Persons.
(d) No Liability. Neither the Committee nor any of its members shall be
liable for any act taken by the Committee pursuant to the Plan. No member of the
Committee shall be liable for the act of any other member.
4
<PAGE> 5
SECTION 6. AWARDS
(a) Grant of Awards. The Committee will determine the type or types of
Awards to be granted to each Participant and will set forth in the related
Notice of Award or Award Agreement the terms, conditions, vesting periods, and
restrictions applicable to each Award. Awards may be granted singly or in
combination or tandem with other Awards. Awards may also be granted in
replacement of, or in substitution for, other awards granted by the Company,
whether or not granted under this Plan. The Company may assume obligations in
respect of awards granted by any Person acquired by the Company or may grant
Awards in replacement of, or in substitution for, any such awards.
(b) Types of Awards. Awards may include, but are not limited to, the
following:
(i) Stock Appreciation Rights. A Participant who is granted an Award
which is a Stock Appreciation Right shall have the right to receive a
payment in cash or shares of Common Stock, equal to the excess of (A) the
Fair Market Value, or other specified valuation, of a specified number of
shares of Common Stock on the date the right is exercised over (B) the Fair
Market Value, or other specified valuation, of such shares of Common Stock
on the date the right is granted, all as determined by the Committee. The
right may be conditioned upon the occurrence of certain events, such as a
Change in Control of the Company, or may be unconditional, as determined by
the Committee.
(ii) Stock Options. A Participant who is granted an Award which is a
Stock Option shall have the right to purchase a specified number of shares
of Common Stock, during a specified period, and at a specified exercise
price, all as determined by the Committee. A Stock Option may be an
Incentive Stock Option or a Stock Option that does not qualify as an
Incentive Stock Option. In addition to the terms, conditions, vesting
periods, and restrictions established by the Committee, Incentive Stock
Options must comply with the requirements of Section 422 of the Code. The
exercise price of a Stock Option that does not qualify as an Incentive
Stock Option may be more or less than the Fair Market Value of the shares
of Common Stock on the date the Stock Option is granted.
(c) Limits on Awards. The maximum aggregate number of shares of Common
Stock (i) for which Stock Options may be granted, and (ii) with respect to which
Stock Appreciation Rights may be granted, to any particular employee during any
calendar year during the term of this Plan is 75,000, subject to adjustment in
accordance with Section 4(c).
(d) Termination of Awards. Any Award granted under this Plan shall expire,
and the Participant to whom such Award was granted shall have no further rights
with respect thereto, on the tenth anniversary of the date of grant of such
Award, or on such earlier date as may be established by the Committee and
provided in the Notice of Award or Award Agreement with respect to such Award.
5
<PAGE> 6
SECTION 7. DEFERRAL OF PAYMENT
With the approval of the Committee, the delivery of the shares of Common
Stock cash, or any combination thereof subject to an Award may be deferred,
either in the form of installments or a single future delivery. The Committee
may also permit selected Participants to defer the receipt of some or all of
their Awards, as well as other compensation, in accordance with procedures
established by the Committee to assure that the recognition of taxable income is
deferred under the Code. Deferred amounts may, to the extent permitted by the
Committee, be credited as cash or Stock Equivalent Units. The Committee may also
establish rules and procedures for the crediting of interest on deferred cash
payments and dividend equivalents on Stock Equivalent Units.
SECTION 8. PAYMENT OF EXERCISE PRICE
The exercise price of a Stock Option (other than an Incentive Stock
Option) and any other Award for which the Committee has established an exercise
price may be paid in cash, by the transfer of shares of Common Stock, or
by a combination of these methods, as and to the extent permitted by the
Committee. The exercise price of an Incentive Stock Option may be paid in cash,
by the transfer of shares of Common Stock, or by a combination of these methods,
as and to the extent permitted by the Committee but may not be paid by the
surrender of all or part of an Award. The Committee may prescribe any other
method of paying the exercise price that it determines to be consistent with
applicable law and the purpose of this Plan.
SECTION 9. TAXES ASSOCIATED WITH AWARDS
Prior to the payment of an Award or upon the exercise or release thereof,
the Company may withhold, or require a Participant to remit to the Company, an
amount sufficient to pay any federal, state, and local taxes associated with the
Award. The Committee may, in its discretion and subject to such rules as the
Committee may adopt, permit a Participant to pay any or all taxes associated
with the Award (other than an Incentive Stock Option) in cash, by the transfer
of shares of Common Stock, or by a combination of these methods. The
Committee may permit a Participant to pay any or all taxes associated with an
Incentive Stock Option in cash, by the transfer of shares of Common Stock, or by
a combination of these methods or by any other method which does not disqualify
the option as an Incentive Stock Option under applicable provisions of the Code.
SECTION 10. TERMINATION OF EMPLOYMENT
If the employment of a Participant terminates for any reason, all
unexercised, deferred, and unpaid Awards may be exercisable or paid only in
accordance with rules established by the Committee or as specified in the
particular Award Agreement or
6
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Notice of Award. Such rules may provide, as the Committee deems appropriate, for
the expiration, continuation, or acceleration of the vesting of all or part of
the Awards.
SECTION 11. TERMINATION OF AWARDS UNDER CERTAIN CONDITIONS
The Committee may cancel any unexpired, unpaid, or deferred Awards at any
time if the Participant is not in compliance with all applicable provisions of
this Plan or with any Notice of Award or Award Agreement or if the Participant,
without the prior written consent of the Company, engages in any of the
following activities:
(i) Renders services for an organization, or engages in a business,
that is, in the judgment of the Committee, in competition with the
Company.
(ii) Discloses to anyone outside of the Company, or uses for any
purpose other than the Company's business any confidential information or
material relating to the Company, whether acquired by the Participant
during or after employment with the Company, in a fashion or with a result
that the Committee, in its judgment, deems is or may be injurious to the
best interests of the Company.
The Committee may, in its discretion and as a condition to the exercise of
an Award, require a Participant to acknowledge in writing that he or she is in
compliance with all applicable provisions of this Plan and of any Notice of
Award or Award Agreement and has not engaged in any activities referred to in
clauses (i) and (ii) above.
SECTION 12. CHANGE IN CONTROL
In the event of a Change in Control of the Company, the Committee shall
have the right, in its sole discretion, to (i) accelerate the exercisability of
any Stock Options and Stock Appreciation Rights, notwithstanding any limitations
set forth in the Plan; (ii) cancel all outstanding Stock Options and Stock
Appreciation Rights in exchange for the kind and amount of shares of the
surviving or new corporation, cash, securities, evidences of indebtedness, other
property or any combination thereof receivable in respect of one share of Common
Stock upon consummation of the transaction in question (the "Acquisition
Consideration") that (a) with respect to Awards of Stock Options, the
Participant would have received had the Stock Option been exercised prior to
such transaction, less the applicable exercise price therefor, and (b) with
respect to a Stock Appreciation Right, the Participant would have received had
payment therefor been made by the Company prior to such transaction in shares of
Common Stock; (iii) cause the Participant to have the right thereafter and
during the term of the Stock Option or Stock Appreciation Right, to receive upon
exercise thereof the Acquisition Consideration receivable upon the consummation
of such transaction by a holder of the number of shares of Common Stock which
might have been obtained upon exercise of all or any portion thereof; or (iv)
take such other action as it deems appropriate to preserve the value of the
Award to the Participant. Alternatively, the Committee shall also have the right
ot require any purchaser of the Company's assets or stock, as the case may be,
to take any of
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<PAGE> 8
the actions set forth in the preceding sentence as such purchaser may determine
to be appropriate or desirable.
SECTION 13. AMENDMENT, SUSPENSION, OR TERMINATION OF THIS PLAN; AMENDMENT OF
OUTSTANDING AWARDS
(a) Amendment, Suspension, or Termination of this Plan. The Board of
Directors may amend, suspend, or terminate this Plan at any time; provided,
however, that in no event, without the approval of the Company's shareholders,
shall any action of the Committee or the Board of Directors result in:
(i) increasing, except as provided in Section 4(c) hereof, the
maximum number of shares of Common Stock that may be subject to Awards
granted under the Plan;
(ii) making any changes which would cause any option granted
under the Plan as an Incentive Stock Option not to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code; or
(iii) making any change which would eliminate the exemption
provided by Rule 16b-3 for this Plan and for Awards granted under this
Plan.
(b) Amendment of Outstanding Awards. The Committee may, in its
discretion, amend the terms of any Award, prospectively or retroactively, but no
such amendment may impair the rights of any Participant without his or her
consent. The Committee may, in whole or in part, waive any restrictions or
conditions applicable to, or accelerate the vesting of, any Award.
SECTION 14. AWARDS TO FOREIGN NATIONALS AND EMPLOYEES OUTSIDE THE UNITED STATES
To the extent that the Committee deems appropriate to comply with foreign
law or practice and to further the purpose of this Plan, the Committee may,
without amending this Plan, (i) establish special rules applicable to Awards
granted to Participants who are foreign nationals, are employed outside the
United States, or both, including rules that differ from those established under
this Plan, and (ii) grant Awards to such Participants in accordance with those
rules.
SECTION 15. NONASSIGNABILITY
Unless otherwise determined by the Committee, (i) no Award granted under
the Plan may be transferred or assigned by the Participant to whom it is granted
other than by will, pursuant to the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined in the Code, and (ii) an
Award granted under this Plan may be exercised, during the Participant's
lifetime, only by the Participant or by the Participant's guardian or legal
representative. Notwithstanding the foregoing, no Incentive Stock Option may be
transferred or assigned pursuant to a qualified domestic relations order or
8
<PAGE> 9
exercised, during the Participant's lifetime, by the Participant's guardian or
legal representative.
SECTION 16. TERMS OF AWARDS AND RELATED AGREEMENTS NEED NOT BE IDENTICAL
The form and substance of Awards, Award Agreements and Notices of Awards,
whether granted at the same or different times, need not be identical. Subject
only to the terms of the Plan, the Committee shall have the authority to
prescribe the terms of any Awards and the provisions of any Award Agreements,
Notices of Award or other instruments entered into with respect to the same; it
being expressly understood that the Committee shall have the authority to
include in any such Award Agreements, Notices of Award or other instruments
relating to Awards, such representations, warranties, covenants and agreements
on behalf of the Company or the participant as it deems necessary or
appropriate, including, without limitation, covenants relating to
non-competition, non-solicitation and non-disclosure of confidential
information.
SECTION 17. GOVERNING LAW
The interpretation, validity, and enforcement of this Plan will, to the
extent not otherwise governed by the Code or the securities laws of the United
States, be governed by the laws of the State of Delaware.
SECTION 18. NO RIGHTS AS EMPLOYEES/STOCKHOLDERS
Nothing in the Plan or in any Award Agreement or Notice of Award shall
confer upon any Participant any right to continue in the employ of the Company
or an Affiliate, or to serve as a member of the Board or to be entitled to
receive any remuneration or benefits not set forth in the Plan or such Award
Agreement or Notice of Award, or to interfere with or limit either the right of
the Company or an Affiliate to terminate the employment of such Participant at
any time or the right of the stockholders of the Company to remove him or her as
a member of the Board with or without cause. Nothing contained in the Plan or in
any Award Agreement or Notice of Award shall be construed as entitling any
Participant to any rights of a stockholder as a result of the grant of an Award
until such time as shares of Common Stock are actually issued to such
Participant pursuant to the exercise of a Stock Option or Stock Appreciation
Right.
SECTION 19. EFFECTIVE AND TERMINATION DATES
(a) Effective Date. This Plan was approved by the Board of Directors
on February 6, 1997 and becomes effective upon adoption by the affirmative vote
of the holders of a majority of the voting power of the Company represented by
the shares of Common Stock present and eligible to vote, in person or by proxy,
at any annual or special meeting of stockholders at which a quorum is present.
The Plan shall be deemed to be adopted on the date of such stockholder meeting.
9
<PAGE> 10
(b) Termination Date. This Plan will continue in effect until
midnight on May 1, 2007; provided, however, that Awards granted on or before
that date may extend beyond that date and restrictions and other terms and
conditions imposed on Restricted Stock or any other Award granted on or before
that date may extend beyond such date.
10
<PAGE> 1
EXHIBIT 4.5
CHART INDUSTRIES, INC.
1997 STOCK BONUS PLAN
1. NAME AND PURPOSE.
1.1 The name of this plan is the Chart Industries, Inc. 1997 Stock Bonus
Plan ("Plan"). The Plan will be maintained by Chart Industries, Inc. (the
"Company") to further the growth, success and interests of the Company and the
stockholders of the Company by requiring certain management employees of the
Company who receive a Qualifying Bonus (as defined in Section 3.3 below) to
receive a portion of such Qualifying Bonus in Common Stock, par value $.01 per
share, of the Company ("Shares") under the terms and conditions of and in
accordance with this Plan, thereby increasing their direct involvement in the
future success of the Company.
2. ADMINISTRATION OF THE PLAN.
2.1 This Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company which shall consist of at
least two (2) directors, each of whom shall be a "non-employee director" within
the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934
and any successor to such rule ("Rule 16b-3"). The Committee may, from time to
time, designate one or more persons or agents to carry out any or all of its
administrative duties hereunder; provided that none of the duties required to be
performed by the Committee under Rule 16b-3 or Section 2.3 of the Plan may be
delegated to any other person.
2.2 The Plan shall be administered and operated on the same annual
accounting period as the Company (herein referred to as the "Plan Year"), which
presently is the calendar year. The first Plan Year will be deemed to have
commenced on January 1, 1997 and to have end on December 31, 1997. In the event
that the Company changes its annual accounting period, the Plan Year shall
automatically change and the Committee may make such adjustments to the
operation of the Plan as appropriate to reflect any short Plan Years,
adjustments to the dates that Shares are awarded or any other adjustments that
may be appropriate to reflect the change in the Plan Year.
2.3 The Committee shall interpret the Plan, and to the extent and in the
manner contemplated herein, it shall exercise the discretion granted to it. The
Committee shall issue from time to time such rules and interpretations as in its
judgment are necessary in order to administer the Plan effectively. The
Committee shall have the exclusive right in its sole discretion to determine the
number of Shares awarded to each participant, to determine the price or prices
at which Shares shall be awarded to each participant, to determine the time or
times when Shares may be awarded and to prescribe the form, which shall be
consistent with this Plan, of the instruments evidencing any award and issuance
under this
<PAGE> 2
Plan and the legend, if any, to be affixed to the certificates representing
Shares issued under this Plan.
3. ELIGIBLE EMPLOYEES AND PARTICIPATION.
3.1 Any employee of the Company shall be eligible to participate in the
Plan if he has been awarded a Qualifying Bonus as defined in Section 3.3 below
for the Plan Year or any portion of the Plan Year.
3.2 No member of the Board of Directors of the Company, unless he is also
an employee of the Company, and no member of the Committee, shall be eligible to
participate in the Plan.
3.3 The words "Qualifying Bonus" shall mean a bonus paid to an employee
under one of the Company's Management Incentive Compensation Programs and as
such programs may be amended from time to time.
3.4 Subject to approval by the Board of Directors of the Company, the
Committee shall have the specific right to amend the Plan to exclude or include
any employee under the Plan upon such terms and conditions as deemed appropriate
by the Committee.
4. STOCK PORTION OF QUALIFYING BONUS.
4.1 The number of Shares that shall be awarded to a participant who is
entitled to receive a Qualifying Bonus shall be determined by dividing the Stock
Portion of a participant's Qualifying Bonus by the Adjusted Purchase Price of
one Share. The Stock Portion of a participant's Qualifying Bonus shall be
determined under a formula according to the participant's Qualifying Bonus
amount. Such formula may be reflected in a chart which is adopted and approved
by the Compensation Committee each year and is attached hereto as Schedule A to
incorporate such chart as if fully set forth herein. The Compensation Committee
may adopt as many different formulas and charts as it deems necessary for each
class of employees who receive a Qualifying Bonus.
4.2 The Stock Portion of a participant's Qualifying Bonus shall be
determined for each Qualifying Bonus paid with respect to a Plan Year by
aggregating the amount of the current Qualifying Bonus together with all the
Qualifying Bonuses previously paid with respect to such Plan Year to determine
the stock portion for the current Qualifying Bonus.
4.3 The Adjusted Purchase Price for one Share shall be determined by
calculating the average closing price of one Share for the five (5) trading day
period ending on the last day of the month immediately preceding the month that
includes the date in which payment of the Qualifying Bonus is actually made to
the participant, and multiplying such average price by ninety-five percent
(95%).
2
<PAGE> 3
5. SHARES SUBJECT TO THE PLAN.
5.1 The Shares which may be awarded and issued to employees under this
Plan shall be made available, at the discretion of the Board of Directors,
either from authorized and unissued Shares of the Company or from Shares
reacquired by the Company, including Shares purchased in the open market.
5.2 Shares issued to employees under this Plan shall be subject to such
terms and conditions as the Committee in its discretion may provide.
5.3 Subject to the provisions of the succeeding paragraphs of this Section
5, the aggregate number of Shares which may be issued under this Plan shall not
exceed one hundred thousand (100,000) Shares. In the event that this limitation
applies in a Plan Year, the number of Shares that shall be awarded to an
employee shall be that number of Shares equal to the aggregate number of Shares
as limited by this Section 5.3 multiplied by a fraction where the numerator is
equal to the number of Shares that would have been awarded to such employee
without taking into account the limitations in this Section 5.3 and the
denominator is equal to the total number of Shares that would have been awarded
to all employees without taking into account the limitations in this Section
5.3.
5.4 In the event that the outstanding Shares shall be changed by reason of
shares splits or combinations, recapitalization or reorganizations, or share
dividends, the number of Shares and the class or classes of securities which may
thereafter be issued under this Plan may be appropriately adjusted as determined
by the Committee so as to reflect such change.
5.5 No fractional Shares shall be awarded under the Plan. In the event
that the determination of the number of Shares that a participant is entitled to
under the Plan results in a fractional Share, such participant shall be entitled
to the number of whole Shares that results from rounding up such determination
to the next larger whole Share.
6. AMENDMENTS.
6.1 This Plan may be amended at any time by the Board of Directors of the
Company, provided, that if this Plan shall have been approved by the
stockholders of the Company, no such amendment shall increase the maximum number
of Shares that may be issued pursuant to this Plan, except pursuant to Section 5
hereof, without the further approval of such stockholders; and provided further,
that no amendment to this Plan shall modify or impair the rights of participants
who have been awarded Shares, or who have been granted the right to an award of
Shares hereunder prior to any such amendment.
7. DURATION.
7.1 This Plan became effective upon its adoption by the Board of Directors
for the Plan Year ending December 31, 1997 and shall terminate on December 31,
2001 or such earlier date as may be determined by the Board of Directors;
provided, however, that the
3
<PAGE> 4
Plan shall terminate and all awards of Shares under the Plan shall be revoked
if, within twelve (12) months of the date of its adoption by the Board of
Directors, the Plan does not receive the approval of a majority of the
outstanding Shares present in person or by proxy and entitled to vote at a
meeting of stockholders of the Company; provided further, that such termination
shall not impair the rights of participants to any award hereunder with respect
to the Plan Year ending December 31, 2001, or any earlier Plan Year.
4
<PAGE> 5
SCHEDULE A
----------
Effective for Bonuses Payable for Fiscal Year
Beginning January 1, 1997
<TABLE>
<CAPTION>
INCENTIVE BONUS AMOUNT STOCK PORTION OF BONUS
OVER BUT NOT OVER
========================================================================================
<C> <C> <C>
$0 $25,000 $0
- ----------------------------------------------------------------------------------------
$25,000 $50,000 10% of total amount of bonus
- ----------------------------------------------------------------------------------------
$50,000 $100,000 $5,000 plus 15% of amount over $50,000
- ----------------------------------------------------------------------------------------
$100,000 $12,500 plus 20% of amount over $100,000
========================================================================================
</TABLE>
5
<PAGE> 1
[Calfee, Halter & Griswold LLP Letterhead]
EXHIBIT 5.1
July 29, 1997
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 525,000 shares of Common Stock, par value $.01 per share (the "Shares"), of
the Company, to be offered and sold from time to time pursuant to the Chart
Industries, Inc. 1997 Stock Option and Incentive Plan and the Chart Industries,
Inc. 1997 Stock Bonus Plan (collectively, the "Plans"). 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 Shares
under the Securities Act of 1933, as amended.
In this connection, we have examined the Company's Amended and
Restated Certificate of Incorporation and By-Laws, 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 Shares are duly authorized and, when issued pursuant to the
terms and conditions of the Plans, will be validly issued, fully paid and
nonassessable.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced, filed publicly, or relied upon by any
other person for any purpose without the express written consent of the
undersigned.
This opinion is limited to matters of the Delaware General
Corporation Law, and we express no view as to the effect of any other law on the
opinion set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
CALFEE, HALTER & GRISWOLD LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Chart Industries, Inc. 1997 Stock Option
and Incentive Plan and the Chart Industries, Inc. 1997 Stock Bonus Plan of our
report dated February 3, 1997, with respect to the consolidated financial
statements of Chart Industries, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1996, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Cleveland, Ohio
July 28, 1997
