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EXHIBIT 10.5.2
EXHIBIT A
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.
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
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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.
(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
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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.
(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.
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(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 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 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
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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.
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.
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