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Exhibit 4.7
AMENDMENT TO WARRANT AGREEMENT
This Amendment to Warrant Agreement is made as of this 31st day of
July, 1997, by and between The CIT Group Equity Investments, Inc. (the
"Holder"), Cryenco Sciences, Inc., a Delaware corporation (f/k/a Cryenco
Holdings, Inc.) ("Cryenco") and Chart Industries, Inc., a Delaware corporation
("Chart").
WHEREAS, the Holder and Cryenco, among others, are parties to that
certain securities purchase agreement dated as of August 30, 1991, as amended,
and letter agreements dated as of August 12, 1992 and October 31, 1993 (the
"Warrant Agreement"), pursuant to which Cryenco granted the Holder a warrant or
warrants (the "Cryenco Warrants") to purchase 32,195 shares of Class B common
stock, par value $.01 per share (the "Class B Stock"), and 18,042 shares of
Class A common stock, par value $.0l per share (together with the Class B
Stock, the "Cryenco Common Stock") (such number of shares having been adjusted
to reflect the reverse stock split of Cryenco Common Stock effective August 13,
1992 and the antidilution adjustments triggered by Cryenco's Private Placement
and related transactions with International Capital Partners, Inc. which
occurred in December 1994, January 1995);
WHEREAS, Cryenco and Chart entered into a Plan and Agreement of Merger
dated as of April 30, 1997 (the "Merger Agreement") providing for the merger of
an affiliate of Chart into Cryenco (the "Merger") and the conversion of all
issued and outstanding Cryenco Common Stock (other than dissenters' shares)
into cash in the amount of $2.75 per share;
WHEREAS, in Section 5.4(b)(iii) of the Merger Agreement, Chart has
agreed to offer to grant substitute warrants (the "Chart Warrants") to purchase
shares of Chart's common stock, par value $.01 per share (the "Chart Common
Stock"), in exchange for the Cryenco Warrants; and
WHEREAS, the Holder, Cryenco and Chart now desire that, in
satisfaction of Chart's obligations under Section 5.4(b)(iii) of the Merger
Agreement, the Cryenco Warrants be amended to provide the Holder with the right
to purchase Chart Common Stock in substitution for the right to purchase
Cryenco Common Stock.
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements and undertakings set forth herein, the parties hereby agree as
follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meaning ascribed to them in the Merger Agreement.
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2. AMENDMENT. As of the effective time of the Merger (the "Effective
Time"), the Warrant Agreement and the Cryenco Warrants issued thereunder are
hereby amended as follows:
(a) CHANT COMMON STOCK SUBSTITUTED FOR CRYENCO COMMON STOCK. All
references to the right of the Holder to purchase shares of
Cryenco Common Stock shall be deemed to be and the right to
purchase shares of Chart Common Stock.
(b) ADJUSTMENT TO NUMBER OF SHARES UNDERLYING WARRANT. The number
of shares of Chart Common Stock issuable upon exercise of
each Chart Warrant which is issued in substitution for a
Cryenco Warrant shall be the product of (i) the number of
shares of Cryenco Common Stock that were issuable upon
exercise of the corresponding Cryenco Warrant immediately
prior to the Effective Time times (ii) a fraction (the
"Exchange Ratio") the numerator of which shall be $2.75 and
the denominator of which shall be the average of the closing
sales price of Chart Common Stock on the New York Stock
Exchange as reported by the Wall Street Journal for the ten
trading days immediately preceding the Effective Time;
provided, however, that in no event shall the Exchange Ratio
be less than .165 nor more than .206.
(c) ADJUSTMENT TO PURCHASE OR EXERCISE PRICE. The purchase or
exercise price per share of Chart Common Stock subject to a
Chart Warrant shall be equal to (i) the purchase or exercise
price per share of Cryenco Common Stock in the corresponding
Cryenco Warrant divided by (ii) the Exchange Ratio.
(d) NOTICES. Any notices, requests, forms, certificates or other
documents or communications deliverable to Cryenco under the
Warrant Agreement shall be required to be delivered instead
to Chart at 35555 Curtis Boulevard, Eastlake, OH 44095, to
the attention of the Chief Financial Officer, with a copy to
Calfee, Halter & Griswold LLP, 1400 McDonald Investment
Center, 800 Superior Avenue, Cleveland, OH 44114, Attention:
Thomas F. McKee.
(e) SUBSTITUTION OF WARRANTS. Chart and the Holder agree that any
and all Cryenco Warrants and/or Cryenco Warrant certificates
issued pursuant to the Warrant Agreement shall be amended in
a manner consistent with the provisions of this Amendment and
that, upon the Holder's presentation to Chart of such Cryenco
Warrants or Cryenco Warrant certificates, Chart shall deliver
to the Holder, in exchange and substitution therefor, new
Chart Warrants or Chart Warrant certificates.
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3. FULL COMPLIANCE; ASSUMPTION OF CRYENCO'S OBLIGATIONS; REFERENCES TO
CRYENCO. The Holder acknowledges and agrees that, as of the Effective Time,
Cryenco is in full compliance with all of its obligations under the Warrant
Agreement, the Cryenco Warrants and any related agreements pertaining to
registration rights of the Holder with respect to the shares of Cryenco Common
Stock issuable upon exercise of the Cryenco Warrants. As of the Effective Time,
Chart assumes all of the obligations of Cryenco under the Warrant Agreement as
amended hereby, and all references to Cryenco in the Warrant Agreement shall be
deemed to be references to Chart. To the extent that Holder is party to a
separate registration rights agreement relating to Cryenco Common Stock,
promptly after the Effective Time, Chart and the Holder shall enter into such
supplemental agreement as may be necessary to provide the Holder with
equivalent registration rights relating to Chart Common Stock issuable upon
exercise of the Chart Warrants.
4. RECEIPT OF CHART DISCLOSURES. The Holder acknowledges that it has
received copies of Chart's 1996 Form 10-K Report and Chart's Form 10-Q Report
for the three-month period ended March 31, 1997.
5. NO RIGHT TO PURCHASE CRYENCO COMMON STOCK. At and after the
Effective Time, the Holder shall be deemed to have surrendered any and all
rights under the Warrant Agreement and Warrant to purchase Cryenco Common
Stock.
6. CONSENT TO AMENDMENT. By the execution and delivery of this
Amendment, the Holder shall be deemed to have consented to the terms hereof in
accordance with the terms of the Warrant Agreement.
7. NO OTHER AMENDMENTS. Except as specifically provided herein or as
otherwise necessary or appropriate to effectuate the intent of this Amendment,
the provision of the Cryenco Warrant shall remain in full force and effect
without any alteration or modification thereto. Without limiting the
generality of the foregoing, the date of grant and the date of termination of
the Cryenco Warrant shall continue to be such dates as were in effect
immediately prior to the Effective Time.
8. SUCCESSORS AND ASSIGNS. This Amendment and all of the provisions
hereof shall be binding on and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
9. GOVERNING LAW. This Amendment shall be, and the Warrant Agreement
shall be amended to provide that it shall be, governed by and construed in
accordance with, the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
10. SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
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11. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
CHART INDUSTRIES, INC.
Attest:
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By:
Title:
THE CIT GROUP/EQUITY INVESTMENTS, INC.
Attest: /s/ Kenneth L. Walters, Jr.
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By: Kenneth L. Walters, Jr.
Title: Vice President
CRYENCO SCIENCES, INC.
Attest: /s/ Steven M. Lutt /s/ James A. Raabe
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By: James A. Raabe
Title: Vice President and Chief Financial
Officer
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