As filed with the Securities and Exchange Commission on March 20, 2001
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)
5885 Landerbrook Dr. Suite 150
Cleveland, Ohio 44124
(Address of Principal Executive Offices, including Zip Code)
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CHART INDUSTRIES, INC. 2000 EXECUTIVE INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
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Arthur S. Holmes Copy to:
Chairman and Chief Executive Officer Thomas F. McKee, Esq.
Chart Industries, Inc. Calfee, Halter & Griswold LLP
5885 Landerbrook Dr., Suite 150 1400 McDonald Investment Center
Cleveland, Ohio 44124 800 Superior Avenue
(440) 753-1490 Cleveland, Ohio 44114
(216) 622-8200
(Name, Address and Telephone Number, Including Area Code of Agent for Service)
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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 (2) per share (1) price (1) fee
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Common Stock, par value
$.01 per share (3) 600,000 $4.65 $2,790,000 $697.50
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(1) Estimated in accordance with Rule 457(c) and (h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee and based upon the average of the high and
low sale prices of the registrant's common stock, par value $.01 per share
(the "Common Stock"), reported on the New York Stock Exchange on March 16,
2001.
(2) Pursuant to Rule 416 under the Securities Act, this registration statement
also covers such additional shares of the Common Stock which may be issued
or become issuable under the terms of the registrant's 2000 Executive
Incentive Stock Option Plan (the "Plan") in order to prevent dilution
resulting from any stock split, stock dividend or similar transaction.
(3) One Series A Junior Participating Preferred Stock purchase right (a
"Right") will also be issued with respect to each share of Common Stock.
The terms of the Rights are described in the registrant's Registration
Statement on Form 8-A, dated June 1, 1998, as the same may be amended or
supplemented from time to time.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Company with the Commission
are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
(2) The description of the Company's 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; and
(3) The description of the Rights contained in the Company's Registration
Statement on Form 8-A, dated June 1, 1998, and any amendments or
reports filed for the purpose of updating that description;
other than the portions of such documents that, by statute, by designation in
such document or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
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.
2
Item 5. Interests of Named Experts and Counsel.
Thomas F. McKee, a partner of Calfee, Halter & Griswold LLP, is a Director
of the Company, and as of December 31, 2000, beneficially owned 12,250 shares of
Common Stock.
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 VIII 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 By-Laws that recognize the validity of
additional indemnity rights granted by agreement. The substantive content of the
Indemnity Agreements and Article VII of the By-Laws is substantially the same
except that, pursuant to the Indemnity Agreements, indemnity is expressly
provided for settlements in derivative actions and partial indemnification is
permitted in the event that the Director or officer is not entitled to full
indemnification.
Both the 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
3
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;
(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;
(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
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apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 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 20th day of March,
2001.
CHART INDUSTRIES, INC.
By: /s/ Arthur S. Holmes
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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 March 20, 2001.
Signatures Title
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/s/ Arthur S. Holmes Chairman & Chief Executive Officer and a
-------------------------------------------------------------- Director (Principal Executive Officer)
Arthur S. Holmes
/s/ Don A. Baines Chief Financial Officer, Treasurer and a
-------------------------------------------------------------- Director (Principal Financial Officer)
Don A. Baines
/s/ John T. Romain Controller and Chief Accounting Officer
-------------------------------------------------------------- (Principal Accounting Officer)
John T. Romain
/s/ Richard J. Campbell Director
--------------------------------------------------------------
Richard J. Campbell
/s/ Thomas F. McKee Director
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Thomas F. McKee
/s/ Lazzaro G. Modigliani Director
--------------------------------------------------------------
Lazzaro G. Modigliani
/s/ Robert G. Turner, Jr. Director
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Robert G. Turner, Jr.
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EXHIBIT INDEX
Exhibit
Number Exhibit Description
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4.1 Amended and Restated Certificate of Incorporation of the
Company. (1)
4.2 Certificate of Designation of Series A Junior Participating
Preferred Stock. (2)
4.3 Amended and Restated By-Laws of the Company. (3)
4.4 Specimen certificate for the Common Stock of the Company. (2)
4.5 Chart Industries, Inc. 2000 Executive Incentive Stock Option
Plan (4)
4.6 Rights Agreement, dated as of May 1, 1998, by and between the
Company and National City Bank, as Rights Agent. (5)
4.7 Amendment No. 1 to Rights Agreement, dated February 8, 2001,
by and between the Company and National City Bank, as Rights
Agent. (2)
5.1 Opinion of Calfee, Halter & Griswold LLP. (x)
23.1 Consent of Ernst & Young LLP. (x)
23.2 Consent of Calfee, Halter & Griswold LLP, included in
Exhibit 5.1.
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(1) Incorporated herein by reference to the appropriate exhibit to the Company's
Registration Statement on Form S-3 (Registration No. 333-35321).
(2) Incorporated herein by reference to the appropriate exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 2000.
(3) Incorporated herein by reference to the appropriate exhibit to the Company's
Registration Statement on Form S-1 (Registration No. 33-52754).
(4) Incorporated herein by reference to the appropriate exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000.
(5) Incorporated herein by reference to the appropriate exhibit to the Company's
Registration Statement on Form 8-A, filed June 3, 1998.
(x) Filed herewith.
E-1