AMENDED AND RESTATED 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 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 fifty
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 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 1988, 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.
(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 862,500 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 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.
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 168,750,
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.
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 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 bet 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 to require any purchaser of the Company's assets or stock, as the case
may be, to take any of 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 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, as amended and restated, was approved
by the Compensation Committee of the Board of Directors on February 11, 1999
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, as amended and restated, shall be deemed to be adopted on the date of
such stockholder meeting.
(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.