1
Exhibit 2.1
PLAN AND AGREEMENT OF MERGER
dated as of
April 30, 1997
among
CHART INDUSTRIES, INC.,
GREENVILLE TUBE CORPORATION
CHART ACQUISITION COMPANY, INC.,
and
CRYENCO SCIENCES, INC.
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TABLE OF CONTENTS
ARTICLE I THE MERGER..............................................................................................1
1.1 The Merger.................................................................................................1
1.2 Effective Time of the Merger...............................................................................1
1.3 Effect of the Merger.......................................................................................2
1.4 Continuation of Business...................................................................................2
1.5 Directors and Officers of Surviving Corporation............................................................2
1.6 No Further Rights or Transfers.............................................................................2
ARTICLE II CLOSING................................................................................................2
2.1 Closing....................................................................................................2
2.2 Deliveries at Closing......................................................................................3
ARTICLE III MERGER CONSIDERATION AND EFFECT OF THE MERGER ON
THE CAPITAL STOCK OF CAC AND CRYENCO; PAYMENT OF MERGER
CONSIDERATION.....................................................................................................4
3.1 Effect on Capital Stock....................................................................................4
(a) Capital Stock of CAC........................................................................4
(b) Cryenco Common Stock........................................................................4
(c) Cryenco Preferred Stock.....................................................................4
(d) Distribution of Merger Consideration........................................................4
3.2 Payment of Merger Consideration............................................................................4
(a) Exchange Agent..............................................................................4
(b) Exchange Procedures.........................................................................4
(c) No Further Ownership Rights in Cryenco Common Stock and
Cryenco Preferred Stock................................................................5
(d) Termination of Exchange Fund................................................................5
(e) Dissenting Shares...........................................................................5
ARTICLE IV CRYENCO PROXY STATEMENT................................................................................6
4.1 Filing of Proxy Statement..................................................................................6
4.2 Cryenco Covenant...........................................................................................6
ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS.....................................................................6
5.1 Additional Covenants of All Parties........................................................................6
(a) Corporate Actions...........................................................................7
(b) Publicity...................................................................................7
(c) Notice of Certain Events....................................................................7
(d) Advice of Changes...........................................................................7
(e) Further Assurances..........................................................................7
5.2 Conduct of Business of Cryenco Until Closing Date..........................................................7
5.3 Additional Covenants of Cryenco...........................................................................10
(a) Approval of Cryenco Stockholders...........................................................10
(b) Access to Information and Confidentiality..................................................10
(c) No Solicitations...........................................................................11
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(d) No Acquisitions............................................................................11
(e) Third-Party Consents.......................................................................12
(f) Employee and Non-Employee Director Options.................................................12
(g) Cryenco Warrants...........................................................................13
(h) Monthly Financial Information..............................................................13
5.4 Additional Covenants of Chart.............................................................................13
(a) Indemnification and Insurance..............................................................13
(b) Disposition of Cryenco Options and Cryenco Warrants........................................14
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................................15
6.1 Representations and Warranties of Cryenco.................................................................15
(a) Due Organization...........................................................................15
(b) Power and Authority; No Conflicts..........................................................15
(c) Capital Structure..........................................................................16
(d) Subsidiaries...............................................................................16
(e) SEC Documents..............................................................................17
(f) Vote Required..............................................................................18
(g) Title to Assets............................................................................18
(h) Condition of Assets........................................................................18
(i) Accounts Receivable and Accounts Payable...................................................18
(j) Insurance..................................................................................18
(k) Dividends and Distributions................................................................19
(l) Cryenco Data..............................................................................19
(m) Undisclosed Liabilities....................................................................19
(n) Investigation or Litigation................................................................19
(o) Certain Agreements.........................................................................20
(p) Employee Benefits..........................................................................20
(q) Labor Matters..............................................................................21
(r) Taxes......................................................................................22
(s) Absence of Certain Changes.................................................................23
(t) Legal Compliance...........................................................................23
(u) Environmental Protection...................................................................23
(v) Patents, Copyrights, Trademarks, Trade Names etc...........................................25
(w) Contracts..................................................................................25
(x) Full Disclosure............................................................................25
(y) Brokers or Finders.........................................................................25
6.2 Representations and Warranties of Chart, GTC and CAC......................................................25
(a) Due Organization...........................................................................25
(b) Power and Authority, No Conflicts..........................................................26
(c) Financing of the Merger....................................................................26
(d) Brokers and Finders........................................................................27
ARTICLE VII CONDITIONS...........................................................................................27
7.1 Conditions Precedent to the Obligations of All Parties....................................................27
(a) Stockholder Approvals......................................................................27
(b) Governmental Approvals.....................................................................27
(c) No Injunctions or Restraints...............................................................27
7.2 Conditions Precedent to the Obligations of Cryenco........................................................27
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(a) Representations and Warranties True........................................................27
(b) Performance of Obligations and Agreements..................................................28
(c) Resolutions................................................................................28
(d) Officers' Certificates.....................................................................28
7.3 Conditions Precedent to the Obligations of Chart, GTC and CAC.............................................28
(a) Representations and Warranties True........................................................28
(b) Performance of Obligations and Agreements..................................................28
(c) Resolutions................................................................................28
(d) Officer's Certificate......................................................................28
(e) Consents and Approvals.....................................................................29
(f) No Cryenco Material Adverse Effect.........................................................29
(g) Dissenters Claims..........................................................................29
(h) Cryenco Arrangements with Affiliated Persons...............................................29
(i) Cancellation, Exercise Sale or Exchange of Cryenco Warrants
and Options...........................................................................29
ARTICLE VIII TERMINATION AND AMENDMENT...........................................................................29
8.1 Termination...............................................................................................29
8.2 Effect of Termination.....................................................................................31
8.3 Amendment.................................................................................................31
8.4 Waiver....................................................................................................31
8.5 Fees, Expenses and Other Payments.........................................................................31
ARTICLE IX GENERAL PROVISIONS....................................................................................32
9.1 Effectiveness of Representations, Warranties and Agreements...............................................32
9.2 Notices...................................................................................................33
9.3 Governing Law.............................................................................................34
9.4 Successors................................................................................................34
9.5 Assignment................................................................................................34
9.6 Counterparts..............................................................................................34
Schedules.....................................................................................................34
9.7 Entire Agreement..........................................................................................34
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TABLE OF SCHEDULES
Schedule 1.2 Certificate of Merger
Schedule 5.1 (a) Third Party Consents and Approvals
Schedule 5.1(e) Cryenco Arrangements with Affiliated Persons
Schedule 5.2(viii) Interests in Cryenco Assets
Schedule 5.3(b) Confidentiality Agreement
Schedule 5.4(h) Cryenco Options and Warrants
Schedule 6.1 (b) Power and Authority; No Conflicts
Schedule 6.1 (c) Cryenco Capital Structure
Schedule 6.1 (d) Subsidiaries
Schedule 6.1 (e) SEC Documents
Schedule 6.1 (h) Title to Assets
Schedule 6.1 (i) Condition of Assets
Schedule 6.1 (1) Insurance
Schedule 6.1 (p) Investigation or Litigation
Schedule 6.1 (q) Certain Agreements
Schedule 6.1(r) Employee Benefits
Schedule 6.1 (s) Labor Matters
Schedule 6.1 (u) Absence of Certain Changes
Schedule 6.1 (w) Environmental Protection
Schedule 6.1 (x) Patents, Trademarks, Trade Names, etc.
Schedule 6.1 (y) Contracts
Schedule 6.1(aa) Loss Contingencies
Schedule 6.2(b) Power and Authority; No Conflicts
Schedule 6.2(c) Chart's Capital Structure
Schedule 6.2(d) SEC Documents
Schedule 6.2(h) Dividends and Distributions
Schedule 6.2(m) Absence of Certain Changes
Schedule 6.2(n) Loss Contingencies
Schedule 7.3(h) Form of Stockholder Letter
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INDEX OF DEFINED TERMS
"Agreement".......................................................................................................1
"CAC".............................................................................................................1
"Certificate of Merger"...........................................................................................1
"Chart Material Adverse Effect"..................................................................................26
"Chart Option....................................................................................................14
"Chart Options"..................................................................................................14
"Chart"...........................................................................................................1
"Claim"..........................................................................................................24
"Closing Date"....................................................................................................2
"Closing".........................................................................................................2
"Continuing Employees"...........................................................................................12
"Cryenco Certificate".............................................................................................2
"Cryenco Common Stock"............................................................................................4
"Cryenco Data"...................................................................................................19
"Cryenco Material Adverse Effect"................................................................................15
"Cryenco Preferred Stock".........................................................................................4
"Cryenco SEC Documents"..........................................................................................17
"Cryenco Special Meeting"........................................................................................10
"Cryenco Stockholders' Approval..................................................................................10
"Cryenco Stockholders"............................................................................................4
"Cryenco".........................................................................................................1
"DGCL"............................................................................................................1
"Effective Time"..................................................................................................1
"Environmental Claim" or "Claim".................................................................................24
"Environmental Laws".............................................................................................24
"ERISA Affiliate"................................................................................................20
"ERISA"..........................................................................................................20
"Exchange Act"....................................................................................................6
"Exchange Agent"..................................................................................................4
"Exchange Fund"...................................................................................................4
"Governmental Agency"............................................................................................16
"GTC".............................................................................................................1
"Insider Agreements".............................................................................................29
"Merger"..........................................................................................................1
"Plans"..........................................................................................................20
"Proxy Statement".................................................................................................6
"Returns"........................................................................................................22
"SEC Investigation"..............................................................................................18
"SEC".............................................................................................................6
"Secretary".......................................................................................................1
"Surviving Corporation Common Stock"..............................................................................4
"Surviving Corporation"...........................................................................................1
"Transmittal Letter"..............................................................................................5
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PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (the "Agreement"), dated as of April
___, 1997, is among CHART INDUSTRIES, INC., a Delaware corporation ("Chart"),
GREENVILLE TUBE CORPORATION, an Arkansas corporation ("GTC") and a wholly-owned
subsidiary of Chart, CHART ACQUISITION COMPANY, INC., a Delaware corporation
("CAC") and a wholly-owned subsidiary of GTC, and CRYENCO SCIENCES, INC., a
Delaware corporation ("Cryenco").
WHEREAS, on the terms and subject to the conditions set forth in this
Agreement, Chart desires to acquire, through merger, One Hundred Percent (100%)
of the shares of capital stock of Cryenco issued and outstanding on the date
hereof (and to be outstanding on the Closing Date, as defined in Section 2.1);
WHEREAS, the respective Boards of Directors of Chart, GTC, CAC and
Cryenco deem the merger to be advisable and in the best interests of each of
Chart, GTC, CAC and Cryenco and their respective stockholders and have adopted
resolutions approving the acquisition by Chart of Cryenco through the merger of
CAC with and into Cryenco (the "Merger") in accordance with the laws of the
State of Delaware upon the terms and conditions set forth in this Agreement;
WHEREAS, the Board of Directors of Cryenco has directed that this
Agreement be submitted for consideration at a special meeting of the voting
stockholders of Cryenco;
WHEREAS, unless the context shall otherwise require, capitalized terms
used herein shall have the meanings assigned thereto.
NOW, THEREFORE, in consideration of their respective agreements and
undertakings set forth herein, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. On the terms and subject to the conditions set forth in
this Agreement and in reliance on the representations, warranties and covenants
set forth herein, at the Effective Time, as defined in Section 1.2, CAC shall be
merged with and into Cryenco in accordance with the laws of the State of
Delaware, with Cryenco being the surviving corporation (the "Surviving
Corporation").
1.2 Effective Time of the Merger. The Merger shall be effective when a
certificate of merger in the form of Schedule 1.2 (the "Certificate of Merger")
shall have been properly executed by CAC and Cryenco and delivered to and
accepted for filing by the Secretary of State of the State of Delaware
("Secretary") in accordance with the Delaware General Corporation Law ("DGCL"),
which filing shall be made as promptly as practicable following the Closing, as
defined in Section 2.1. When used in this Agreement, the term "Effective Time"
shall mean the time and the date as of which the Certificate of Merger shall
have been accepted for filing in the office of the Secretary.
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1.3 Effect of the Merger.
(a) At the Effective Time, (i) the separate existence and
corporate organization of CAC shall cease, and CAC shall be merged with and into
Cryenco; (ii) the Certificate of Incorporation of CAC as in effect immediately
prior to the Effective Time shall become the Certificate of Incorporation of the
Surviving Corporation (except as set forth in the Certificate of Merger); and
(iii) the By-laws of CAC as in effect immediately prior to the Effective Time
shall be the By-laws of the Surviving Corporation.
(b) At and after the Effective Time, the Merger shall have the
effect set forth in the DGCL.
1.4 Continuation of Business. The Surviving Corporation shall, after
the Effective Time, continue the businesses of CAC and Cryenco with the assets
of both of such constituent corporations.
1.5 Directors and Officers of Surviving Corporation. As of the
Effective Time, the directors of CAC immediately prior to the Effective Time
shall become the directors of the Surviving Corporation. The officers of CAC
immediately prior to the Effective Time shall become the officers of the
Surviving Corporation. Each of such directors and officers shall hold office
until their respective successors are duly elected or appointed and qualified in
the manner provided in the Certificate of Incorporation and By-laws of the
Surviving Corporation, or as otherwise provided by law.
1.6 No Further Rights or Transfers. At and after the Effective Time.
(a) The stock transfer books of Cryenco shall be closed and
there shall be no further registration of transfers on the stock transfer books
of Cryenco thereafter.
(b) All shares of Cryenco Common Stock and Cryenco Preferred
Stock shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate representing
any such shares ("Cryenco Certificate") shall cease to have any rights with
respect thereto, except the right to receive the Merger Consideration (as
defined below) to be issued or paid in consideration therefor upon the surrender
of such Cryenco Certificate in accordance with Article III hereof.
ARTICLE II
CLOSING
2.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxx, Halter &
Xxxxxxxx LLP, 1400 XxXxxxxx Investment Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxx, at 10:00 am, local time, on the second business day immediately following
the date on which the last of the conditions set forth in Article VII hereof is
fulfilled or waived, or at such other time and place as Chart and Cryenco may
mutually agree (the "Closing Date").
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2.2 Deliveries at Closing.
(a) At the Closing, Cryenco shall deliver to Chart, GTC and
CAC:
(i) the resolutions referred to in Section 7.3(c)
hereof;
(ii) the certificate referred to in Section 7.3(d)
hereof;
(iii) a certificate representing 100 shares of
Cryenco Common Stock duly registered in Chart's name, duly
executed and authenticated;
(iv) copies of the executed consents referred to in
Section 7.3(e) hereof;
(v) evidence, in form reasonably satisfactory to
Chart, of the termination of the arrangements with Cryenco
affiliates described in Section 7.3(h);
(vi) executed agreements with the holders of Cryenco
Warrants and Cryenco Options exercising such warrants and
options or agreeing to the cancellation or exchange thereof
all as described in Section 5.3(f) and 5.3(g) hereof; and
(vii) all other documents, instruments and writings
reasonably requested by Chart, GTC or CAC at or prior to
Closing pursuant to this Agreement or otherwise required
herein.
(b) At the Closing, Chart, GTC and CAC shall deliver to
Cryenco:
(i) the resolutions referred to in Section 7.2(c)
hereof;
(ii) the certificates referred to in Section 7.2(d)
hereof;
(iii) the warrants and options to purchase shares of
Chart Common Stock issuable in exchange for Cryenco Warrants
and Cryenco Options pursuant to the provisions of Section
5.4(b) and the cash payment required under Section 5.4(b); and
(iv) all other documents, instruments and writings
reasonably requested by Cryenco at or prior to Closing
pursuant to this Agreement or otherwise required herein.
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ARTICLE III
MERGER CONSIDERATION AND EFFECT OF THE MERGER ON
THE CAPITAL STOCK OF CAC AND CRYENCO;
PAYMENT OF MERGER CONSIDERATION
3.1 Effect on Capital Stock. As of the Effective Time, by virtue of
the Merger and without any action on the part of the holder of any shares of
Cryenco capital stock ("Cryenco Stockholders") or CAC capital stock:
(a) Capital Stock of CAC. Each issued and outstanding share of
the capital stock of CAC shall be converted into and become one fully paid and
nonassessable share of common stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Common Stock").
(b) Cryenco Common Stock. Each issued and outstanding share of
the Class A common stock, $.01 par value per share of Cryenco and each issued
and outstanding share of the convertible non-voting common stock, $.01 par value
per share of Cryenco, if any ("Cryenco Common Stock"), other than shares as to
which dissenters rights are perfected pursuant to Section 3.2(e) below, shall be
converted into the right to receive a cash amount equal to $2.75.
(c) Cryenco Preferred Stock. Each issued and outstanding share
of Cryenco Series A Preferred Stock, $.01 par value per share (the "Cryenco
Preferred Stock"), shall be converted into the right to receive cash in an
amount equal to the sum of $10 plus any accumulated but unpaid (as of the
Effective Time) dividends with respect to such share of Cryenco Preferred Stock.
(d) Distribution of Merger Consideration. The cash amounts
into which shares of Cryenco Common Stock and Cryenco Preferred Stock are
converted pursuant to Section 3.1(b) and (c) above are hereafter referred to as
the "Merger Consideration". The Merger Consideration shall be distributed to the
Cryenco Stockholders in accordance with Section 3.2 below.
3.2 Payment of Merger Consideration.
(a) Exchange Agent. As of the Effective Time, Chart shall
deposit with National City Bank or such other bank or trust company designated
by Chart (and reasonably acceptable to Cryenco) (the "Exchange Agent"), for the
benefit of the Cryenco Stockholders, for exchange through the Exchange Agent in
accordance with this Article III, cash in an amount sufficient to effect the
cash payments provided for in Sections 3.1(b) and 3.1(c) hereof (such cash being
hereinafter referred to as the "Exchange Fund").
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, the Exchange Agent shall mail to each holder of record
as of the Effective Time of a Cryenco Certificate or Certificates (who has not
perfected dissenters rights pursuant to Section 3.2(e) below) (A) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Cryenco Certificates shall pass, only upon delivery of the
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Cryenco Certificates to the Exchange Agent and shall be in such form and have
such other provisions as Chart and Cryenco may reasonably specify) ("Transmittal
Letter") and (B) instructions for use in effecting the surrender of the Cryenco
Certificates for cash in the amounts prescribed by either Section 3.1(b) or
Section 3.1(c) above. Upon surrender of a Cryenco Certificate for Cryenco Common
Stock for cancellation to the Exchange Agent together with such Transmittal
Letter, duly executed, the holder of such Cryenco Certificate for Cryenco Common
Stock shall be entitled to receive in exchange therefor cash in an amount equal
to $2.75 per share of Cryenco Common Stock surrendered. Upon surrender of a
Cryenco Certificate for Cryenco Preferred Stock for cancellation to the Exchange
Agent, together with such Transmittal Letter, duly executed, the holder of such
Cryenco Certificate for Cryenco Preferred Stock shall be entitled to receive in
exchange therefor cash in an amount per share prescribed by Section 3.1(c)
above. Cryenco Certificates so surrendered shall forthwith be canceled. Until
surrendered as contemplated by this Section 3.2, each Cryenco Certificate shall
be deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the Merger Consideration as contemplated by Section
3.1(b) or 3.1(c).
(c) No Further Ownership Rights in Cryenco Common Stock and
Cryenco Preferred Stock. The Merger Consideration paid upon the surrender of
shares of Cryenco Common Stock or Cryenco Preferred Stock in accordance with the
terms hereof shall be deemed to have been paid in full satisfaction of all
rights pertaining to such shares of Cryenco Common Stock or Cryenco Preferred
Stock. As of the Effective Time, entries shall be made in the stock transfer
books of Cryenco to reflect the cancellation of the Cryenco Common Stock and the
Cryenco Preferred Stock issued and outstanding immediately prior to the
Effective Time and there shall be no further registration of transfers on the
stock transfer books of the Surviving Corporation of the shares of Cryenco
Common Stock and the Cryenco Preferred Stock that were outstanding immediately
prior to the Effective Time. If, after the Effective Time, Cryenco Certificates
are presented to the Surviving Corporation for any reason, they shall be
canceled and exchanged as provided in this Article III.
(d) Termination of Exchange Fund. Any portion of the Exchange
Fund that remains undistributed to the Cryenco Stockholders (pursuant to Section
3.2 (a) above) for twelve months after the Effective Time shall be delivered to
Chart, upon demand, and any Cryenco Stockholders who have not theretofore
complied with this Article III shall thereafter look only to Chart for payment
of their claim for cash.
(e) Dissenting Shares. Notwithstanding any other provision of
this Agreement, shares of Cryenco Common Stock that are outstanding immediately
prior to the Effective Time and which are held by holders of shares of Cryenco
Common Stock who shall have (a) not voted in favor of the Merger or consented
thereto in writing, (b) demanded properly in writing appraisal for such shares
in accordance with Section 262 of the DGCL, and (c) not withdrawn such demand or
otherwise forfeited appraisal rights (collectively, the "Dissenting Shares"),
shall not be converted into or represent the right to receive any part of the
Merger Consideration. Such holders of shares of Cryenco Common Stock shall be
entitled to receive payment of the appraised value of their shares in accordance
with the provisions of such Section 262, except that all Dissenting Shares held
by holders who shall have failed to perfect or who
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effectively shall have withdrawn or lost their appraisal rights under such
Section 262 shall thereupon be deemed to have been converted into and to have
become exchangeable, as of the Effective Time, for the right to receive, without
any interest thereon, cash in the amount of $2.75 per share of Cryenco Common
Stock, upon surrender, in the manner provided in Section 3.2, of the certificate
or certificates that formerly evidenced such shares of Cryenco Common Stock.
Cryenco shall give Chart (i) prompt notice of any demands for appraisal received
by Cryenco, withdrawals of such demands, and any other instruments served
pursuant to DGCL and received by Cryenco and (ii) the opportunity to participate
in all negotiations and proceedings occurring prior to the Effective Time with
respect to demands for appraisal under DGCL. Chart shall direct all proceedings
with respect to appraisal demands after the Effective Time. Cryenco shall not,
except with the prior written consent of Chart, make any payment with respect to
any demands for appraisal, or offer to settle, or settle, any such demands.
Dissenting Shares shall not, after the Effective Time, be entitled to vote for
any purpose or be entitled to the payment of dividends or other distributions
(except for dividends or other distributions payable to stockholders of record
as of a time prior to the Effective Time).
ARTICLE IV
CRYENCO PROXY STATEMENT
4.1 Filing of Proxy Statement. Cryenco will prepare and file with the
Securities and Exchange Commission ("SEC") as soon as reasonably practicable
after the date hereof a proxy statement complying with the Securities Exchange
Act of 1934, as amended ("Exchange Act") to be distributed by Cryenco in
connection with the solicitation of the approval by holders of Cryenco Common
Stock of the Merger (the "Proxy Statement"). Chart and Cryenco shall exchange
all information which the other party or its counsel may reasonably request and
which is required or customary for inclusion in the Proxy Statement.
4.2 Cryenco Covenant. Cryenco shall cause the Proxy Statement (i) to
comply in all material respects with the applicable provisions of the Exchange
Act and the rules and regulations of the SEC thereunder and (ii) at the time
such document is filed with the SEC, at the time of the mailing of the Proxy
Statement and any amendments thereof or supplements thereto, not to contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, or
necessary to correct any statement in any earlier filing with the SEC of such
Proxy Statement or any amendment thereof or any supplement thereto or any
earlier communication (including the Proxy Statement) to stockholders of Cryenco
with respect to the transactions contemplated by this Agreement; provided
however, that no covenant or agreement is made by Cryenco in this Section 4.2 or
any other provision of this Agreement with respect to any information supplied
by Chart or its counsel for inclusion in the Proxy Statement.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Additional Covenants of All Parties. Chart, GTC, CAC and Cryenco
agree that:
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(a) Corporate Actions. Upon the terms and subject to the
conditions of this Agreement, each of Chart, GTC and CAC, on the one hand, and
Cryenco, on the other hand, shall (i) take all necessary corporate and other
actions, (ii) use its reasonable best efforts to obtain all necessary
authorizations and approvals, and (iii) make all necessary filings required to
carry out the transactions contemplated by this Agreement, to satisfy the
conditions specified in Article VII hereof at the earliest practicable date and
otherwise to perform their obligations under this Agreement.
(b) Publicity. Subject to each party's disclosure obligations
imposed by law, Chart, GTC and CAC, on the one hand, and Cryenco, on the other
hand, shall consult with each other prior to issuing any press releases or
otherwise making public statements with respect to the transactions contemplated
hereby and prior to making any filings with any federal or state governmental or
regulatory agency or with any securities exchange with respect thereto.
(c) Notice of Certain Events. If, in the course of the
transactions contemplated by this Agreement, either Chart, GTC or CAC, on the
one hand, or Cryenco, on the other hand, shall acquire knowledge of any fact,
law or circumstance which would be required to be disclosed, either by such
party or by the other party, to avoid a breach of a representation or warranty
contained in this Agreement, then such party shall immediately disclose such
fact, law or circumstance to the other party.
(d) Advice of Changes. Chart, GTC and CAC shall promptly
advise Cryenco of any change or event which individually or in the aggregate
with other such changes or events has a Chart Material Adverse Effect (as
defined below) or which Chart believes would or would be reasonably likely to
cause or constitute a material breach of any of the representations, warranties
or covenants of Chart, GTC and CAC contained herein. Cryenco shall promptly
advise Chart, GTC and CAC of any change or event which individually or in the
aggregate with other such changes or events has a Cryenco Material Adverse
Effect (as defined below) or which Cryenco believes would or would be reasonably
likely to cause or constitute a material breach of any of its representations,
warranties or covenants contained herein.
(e) Further Assurances. Before and after the Closing, each of
the parties shall make all reasonable best efforts to execute such other
documents and take such further actions as may be reasonably required or
desirable to carry out the provisions of this Agreement and the transactions
contemplated hereby.
5.2 Conduct of Business of Cryenco Until Closing Date. From the date of
this Agreement until the Closing Date, except with the prior written consent of
Chart, which consent shall not be unreasonably delayed or withheld, Cryenco
shall conduct its business in the ordinary course and consistent with past
practices and use its reasonable best efforts to preserve intact its business
organization and goodwill, keep available the services of its present officers
and key employees and preserve the goodwill and business relationships with
suppliers, customers and others having business relationships with it. Without
limiting the generality of the foregoing, Cryenco shall:
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(a) refrain from changing, in any material respect, any of its
business policies relating to its business;
(b) maintain and keep its assets in good repair, working order
and condition in the ordinary course of its business as presently conducted
(except for obsolescence and ordinary wear and tear and damage due to casualty);
(c) perform in all material respects all of its obligations
under all contracts, leases and any and all other agreements relating to or
affecting its assets or its business;
(d) refrain from:
(i) declaring or paying any dividends or other
distributions other than cash and preferred stock dividends
required by the terms of the Certificate of Designation with
respect to the Cryenco Preferred Stock;
(ii) except for issuing shares of Cryenco Common
Stock pursuant to the exercise of Cryenco Options or Cryenco
Warrants outstanding on the date hereof and listed on Schedule
6.1(c) or pursuant to options automatically granted between
the date hereof and the Closing pursuant to Cryenco 1993
Non-Employee Director Stock Option Plan, issuing Cryenco
Preferred Stock as preferred stock dividends as required by
the terms of the Certificate of Designation with respect to
the Cryenco Preferred Stock, issuing, redeeming, selling or
disposing of, or creating any obligation to issue, redeem,
sell or dispose of, any shares of its capital stock (whether
authorized but unissued or held in treasury) or any option,
warrant or security convertible into capital stock, including,
without limitation, making any contributions to any employee
stock ownership or compensation plans or granting any stock
options;
(iii) taking any action with respect to the grant of
any severance or termination pay (other than pursuant to
severance arrangements in effect on the date of this Agreement
and disclosed on a schedule to this Agreement to the extent
required) to any employees or with respect to any increase of
benefits payable under its severance or termination pay
policies or agreements in effect on the date hereof and
applicable to employees;
(iv) except for renewals of existing arrangements
which expire between the date of this Agreement and the
Closing, entering into, adopting, accelerating, modifying or
amending in any other manner any written employment,
collective bargaining, consulting, bonus, incentive
compensation, deferred compensation, employee stock option,
profit sharing, employee benefit, welfare benefit or other
agreement, plan or arrangement providing for compensation or
benefits to directors, officers or employees (except as
required by law or as necessary to maintain the tax-qualified
status of such plan, trust or other agreement);
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(v) increasing in any manner the compensation or
fringe benefits of any of Xx Xxxxxxxxx, Xxx Xxx, Xxxxxxx X.
Xxxxx or Xxxxx Xxxxx, or, except in the ordinary course of
business, of any other employee or paying any benefit or
compensation not required by any existing agreement, plan or
arrangement;
(vi) taking any action that could be reasonably
anticipated to have a Cryenco Material Adverse Effect, as
defined in Section 6.1(a), or that could reasonably be
anticipated to cause any representation or warranty set forth
in Article VI hereof to be untrue or any condition to Closing
not to be satisfied;
(vii) accelerating xxxxxxxx, shipments to customers,
payments from customers, orders from suppliers or payment of
accounts payable or adjusting the level of inventory, except
in the ordinary course of business;
(viii) entering into or assuming any new mortgage,
pledge, conditional sale or title retention agreement, lien,
easement, right-of-way, lease, encumbrance or charge of any
kind which will continue on or after the Closing upon the
assets of Cryenco, whether now or hereafter acquired, or
creating or assuming any obligation for borrowed money;
(ix) except as provided in the Cryenco budget for the
year ending August 31, 1997 (a copy of which has been provided
to Chart), making capital expenditures in excess of $100,000
in the aggregate;
(x) acquiring any of the business, capital stock or
assets constituting a business of any other person, firm,
association or corporation;
(xi) selling or otherwise disposing of assets of
Cryenco other than the sale of inventory in the ordinary
course of business;
(xii) entering into any settlement or other
dispositive agreements with respect to any litigation which
would obligate Cryenco for amounts in excess of $5,000 in any
one case or $100,000 in the aggregate for all cases;
(xiii) doing any act or omitting to do any act, or
permitting any act or omission to act, which Cryenco is aware
could reasonably be anticipated to cause a breach or default
by Cryenco under any of Cryenco's contracts, agreements,
commitments or obligations;
(xiv) entering into or amending any confidentiality
agreement or any agreement, contract or arrangement which
would impose any restriction on competition on Cryenco or on
the ability to hire employees from any person;
(xv) entering into or amending any other agreements,
commitments or contracts which, individually or in the
aggregate, are material to Cryenco, except agreements for the
purchase and sale of goods or services in the ordinary course
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of business, consistent with past practice and not in excess
of normal requirements;
(xvi) assuming or otherwise becoming liable or
responsible (whether directly, contingently or otherwise) for
any obligations or liabilities of any other person;
(xvii) moving the location of Cryenco's main offices
or any production facility;
(xviii) incurring expenses other than in the ordinary
course of business; provided, that Cryenco shall be entitled
to incur reasonable investment banking, legal and accounting
fees and expenses in connection with the Merger and the
Special Meeting; or
(xix) agreeing to take any of the foregoing actions.
5.3 Additional Covenants of Cryenco. Cryenco agrees that:
(a) Approval of Cryenco Stockholders. Cryenco shall as soon as
reasonably practicable (i) take all steps necessary duly to call, give notice
of, convene and hold a special meeting of holders of Cryenco Common Stock (the
"Cryenco Special Meeting") (A) for the purpose of adopting this Agreement (the
"Cryenco Stockholders' Approval") and (B) for such other purposes as may be
necessary or desirable, (ii) distribute to holders of Cryenco Common Stock the
Proxy Statement in accordance with applicable Federal and state law, and
Cryenco's Certificate of Incorporation and By-laws, (iii) recommend to the
holders of Cryenco Common Stock, through unanimous resolution of the Cryenco
Board of Directors, the adoption of this Agreement and such other matters as may
be submitted to such stockholders in connection with this Agreement and (iv)
cooperate and consult with Chart with respect to each of the foregoing matters.
The Board of Directors of Cryenco may fail to make such recommendation, or
withdraw, modify or change such recommendation in a manner adverse to the
interest of Chart, if the Board of Directors of Cryenco, after having consulted
with and considered the advice of outside counsel, has reasonably determined in
good faith that the making of such recommendation, or the failure to withdraw,
modify or change its recommendation, would constitute a breach of the fiduciary
duties of the members of such Board of Directors under applicable law.
(b) Access to Information and Confidentiality. Upon reasonable
notice and subject to applicable laws relating to the exchange of information
and the use of insider information,
(i) Cryenco shall, and shall cause each of its
subsidiaries to, afford to the officers, employees,
accountants, counsel and other representatives of Chart
access, during normal business hours during the period prior
to the Effective Time, to all its properties, books,
contracts, commitments and records, and to its officers,
employees, accountants, counsel and other representatives and,
during
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such period, Cryenco shall, and shall cause its respective
subsidiaries to, provide Chart with copies of any documents
filed by Cryenco under the Exchange Act and make available to
Chart such information concerning its business, properties and
personnel as Chart may reasonably request.
(ii) All information furnished pursuant to this
Section 5.3(b) and to Section 5.3(h) below or otherwise by
Cryenco or its representatives to Chart or its representatives
shall be treated as the sole property of Cryenco and, if the
Merger shall not occur, Chart and its representatives shall
return to Cryenco all of such written information and all
documents, notes, summaries or other materials containing,
reflecting or referring to, or derived from, such information.
Chart shall, and shall use its best efforts to cause its
representatives to, keep confidential all such information,
and shall not directly or indirectly use such information for
any competitive or other commercial purpose. The obligation to
keep such information confidential shall continue for three
years from the date the proposed Merger is abandoned and shall
not apply to any information which (i) (w) was already in
Chart's possession prior to the disclosure thereof by Cryenco;
(x) was then generally known to the public; (y) was disclosed
to Chart by a third party not bound by an obligation of
confidentiality or (z) becomes available to Chart from the
demonstrated independent research and/or development efforts
of Chart or its representatives, or (ii) is disclosed as
required by law. It is further agreed that, if in the absence
of a protective order or the receipt of a waiver hereunder,
Chart is nonetheless, in the reasonable opinion of its
counsel, compelled to disclose information concerning Cryenco
to any tribunal or governmental body or agency or else stand
liable for contempt or suffer other censure or penalty, Chart
may disclose such information to such tribunal or governmental
body or agency without liability hereunder.
(c) No Solicitations. Between the date hereof and the
Effective Time or earlier termination of this Agreement in accordance with its
terms, Cryenco shall not, nor shall it authorize or permit any of its officers,
directors or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it to, solicit, encourage,
initiate or participate in discussions or negotiations with any third party
concerning the sale or merger of Cryenco or the sale or transfer of Cryenco's
assets (a "Third Party Transaction"), except that Cryenco may furnish
information about Cryenco and access thereto, in each case in response to
unsolicited requests therefor, to any third party pursuant to appropriate
confidentiality agreements, and may participate in discussions and negotiate
with such third party concerning a Third Party Transaction, if the Board of
Directors of Cryenco determines, in the exercise of its good faith judgment as
to its fiduciary duties to the Cryenco Stockholders and based upon advice of
counsel, that such action is required. Cryenco shall promptly inform Chart in
writing if it receives any proposals or requests for information from a third
party with respect to a Third Party Transaction.
(d) No Acquisitions. Between the date hereof and the Effective
Time or earlier termination of this Agreement in accordance with its terms,
Cryenco shall not acquire or
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agree to acquire by merging or consolidating with, or by purchasing an equity
interest in or a portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business organization or
division thereof.
(e) Third-Party Consents. Prior to the Closing Date, Cryenco
shall use its reasonable best efforts to obtain all consents or approvals of
third parties set forth in Schedule 6.1 (b), and shall provide copies of all
such consents and approvals to Chart and CAC.
(f) Employee and Non-Employee Director Options
(i) Purchase of Non-Continuing Employee Options.
Within five days after receipt by Cryenco of written notice
from Chart as to those Cryenco employees whose employment will
not be continued after the Effective Time (the "Non-Continuing
Employees"), Cryenco shall use its reasonable best efforts to
cause such Non-Continuing Employees who hold options to
purchase shares of Cryenco Common Stock pursuant to any stock
option plan maintained or previously maintained by Cryenco for
the benefit of Cryenco employees (together with the options
described in Section 5.3(f)(iii) hereof, the "Cryenco
Options") that do not, by their terms, expire at or before the
Effective Time or are not by their terms, extinguished upon
termination of such Non-Continuing Employee's employment with
Cryenco to either (A) exercise such Cryenco Options prior to
the Closing, or (B) agree in writing to sell such Cryenco
Options to Chart at the Closing in exchange for cash equal to
the excess of $2.75 per share of Cryenco Common Stock issuable
upon exercise thereof over the exercise price for such Cryenco
Options.
(ii) Purchase or Exchange of Continuing Employee
Options. Prior to the Closing Date, Cryenco shall use its
reasonable best efforts to cause all Cryenco employees who are
not Non-Continuing Employees ("Continuing Employees") and who
hold unexercised Cryenco Options to agree in writing to either
(A) exchange, on the Closing Date, their Cryenco Options for
options to purchase Chart Common Stock, on the basis described
in Section 5.4(b)(ii) hereof, and pursuant to such exchange,
to surrender and waive any and all continuing rights with
respect to such Cryenco Options or (B) sell such Cryenco
Options to Chart at the Closing in exchange for cash equal to
the excess of $2.75 per share of Cryenco Common Stock issuable
upon exercise thereof over the exercise price for such Cryenco
Options.
(iii) Purchase of Non-Employee Director Stock
Options. Prior to the Closing, Cryenco shall use its
reasonable best efforts to cause all individuals who hold
unexercised options to purchase shares of Cryenco Common Stock
pursuant to Cryenco's 1993 Non-Employee Director Stock Option
Plan (each a "Non-Employee Director"), that do not by their
terms, expire at or before the Effective Time or are not by
their terms, extinguished upon termination of such
Non-Employee Director's position as a Director of Cryenco, to
agree in writing to sell
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such Cryenco Options to Chart at the Closing in exchange for
cash equal to the excess of $2.75 per share of Cryenco Common
Stock issuable upon exercise thereof over the exercise price
for such Cryenco Options.
(g) Cryenco Warrants. Prior to the Closing Date, Cryenco shall
use its reasonable best efforts to cause the holders of all warrants to purchase
any class of Cryenco capital stock (the "Cryenco Warrants") to agree in writing
either (i) to sell to Chart, on the Closing Date, any Cryenco Warrants having an
exercise price less than $2.75 per share for a cash payment per Warrant equal to
the excess of $2.75 over the exercise price for such Cryenco Warrants or (ii) to
exchange such Cryenco Warrants on the Closing Date for warrants to purchase
shares of Chart Common Stock on the basis described in Section 5.4(b)(iii)
hereof, and, pursuant to such exchange, to surrender and waive any and all
continuing rights with respect to such Cryenco Warrants.
(h) Monthly Financial Information. Not more than thirty (30)
days after the end of each month, Cryenco will deliver to Chart Cryenco's
unaudited consolidated balance sheet as of the end of such prior month and its
unaudited consolidated statement of income for such prior month, certified by
the Chief Financial Officer of Cryenco as having been prepared from the books
and records of Cryenco and in a manner consistent with past internal practice;
provided, however, that Cryenco's consolidated balance sheet and income
statement for the month of August, 1997 need not be certified by Cryenco's Chief
Financial Officer until after completion of the audit of Cryenco's financial
statements for the fiscal year ended August 31, 1997.
5.4 Additional Covenants of Chart. Chart agrees that:
(a) Indemnification and Insurance. Chart agrees that all
rights to indemnification and all limitations of liability existing in favor of
the employees, agents, directors and officers of Cryenco and its subsidiaries
(collectively, the "Indemnified Parties") to the extent provided for each such
employee, agent, director and officer in Cryenco's Certificate of Incorporation
or By-laws (or in the similar governing documents of any of Cryenco's
subsidiaries) or in any indemnification agreement for such individual which is
specifically listed on Schedule 6.1(o) to this Agreement, each as in effect as
of the date of this Agreement with respect to matters occurring on or prior to
the Effective Time shall survive the Merger and shall continue in full force and
effect without any amendment thereto for a period of six (6) years from the
Effective Time; provided, however, that all rights of indemnification in respect
of any claim asserted or made within such six-year period shall continue until
the final disposition of such claim; provided further, however, that nothing
contained in this Section 5.4(a) shall be deemed to preclude the liquidation,
consolidation or merger of Cryenco or any Cryenco subsidiary, in which case all
of such rights to indemnification and limitations on liability shall be deemed
to survive and continue notwithstanding any such liquidation, consolidation or
merger and shall constitute rights which may be asserted against Chart. Chart
shall use its reasonable best efforts to cause the persons serving as officers
and directors of Cryenco and of the Cryenco subsidiaries immediately prior to
the Effective Time to be covered for a period of six (6) years from the
Effective Time by the Directors and Officers Liability Insurance Policy
maintained by Cryenco
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(provided that Chart may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are not less
advantageous to such directors and officers of Cryenco or its subsidiaries than
the terms and conditions of such existing policy) with respect to acts or
omissions occurring prior to the Effective Time which were committed by such
officers and directors in their capacity as such; provided, however, that Chart
shall not be obligated to make annual premium payments for such insurance to the
extent that such premiums exceed 125% of the premiums paid as of the date hereof
by Cryenco for such insurance ("Cryenco's Current Premium") and if such premiums
for such insurance would at any time exceed 125% of Cryenco's Current Premium
then Chart shall cause to be maintained policies of insurance which in Chart's
good faith determination provide the maximum coverage available at an annual
premium equal to 125% of Cryenco's Current Premium.
(b) Disposition of Cryenco Options and Cryenco Warrants.
(i) Purchase of Cryenco Options. At the Closing,
Chart shall purchase, from any holders of Cryenco Options who
elect to sell such options to Chart pursuant to Section
5.3(f), the Cryenco Options which are offered to it, in each
case in exchange for the cash price described in Section
5.3(f).
(ii) Continuing Employee Options Exchange. At the
Closing, Chart shall grant each Continuing Employee who holds
unexercised Cryenco Options, and who agrees to exchange such
options pursuant to Section 5.3(f)(ii), options to purchase
Chart Common Stock ("Chart Options"), having the following
terms: (A) the Chart Options shall be issued pursuant to
Chart's Key Employee Stock Option Plan; (B) the option term of
the each Chart Option shall be the remaining term of the
Cryenco Option exchanged therefor; (C) each Chart Option shall
be exercisable for the number of shares of Chart Common Stock
arrived at by multiplying the number of shares of Cryenco
Common Stock issuable upon exercise of the Cryenco Option
exchanged therefor by a fraction (the "Exchange Ratio")
determined by the following formula:
$2.75
Exchange Ratio = --------
"P"
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where "P" equals the average of the closing sales price of
Chart Common Stock on the New York Stock Exchange as reported
by the Wall Street Journal (or another mutually-agreeable
national publication) for the ten trading days preceding the
Closing Date; provided, however, that in no event shall the
Exchange Ratio be less than .11 nor more than .1375;
and (D) the exercise price of each Chart Option (per share of
Chart Common Stock issuable thereunder) shall be the exercise
price of the Cryenco Option exchanged therefor divided by the
Exchange Ratio.
(iii) Cryenco Warrants. At the Closing, Chart shall
(A) purchase any Cryenco Warrants having an exercise price
less than $2.75 per share for a cash payment per Warrant equal
to the excess of $2.75 over the exercise price for such
Cryenco Warrants, or (B) with respect to those Cryenco
Warrants for which the exercise price is greater than $2.75,
Chart shall grant the holder, in exchange for (and surrender
of) each such Warrant, a substitute warrant (the "Chart
Warrant") to purchase the number of shares of Chart Common
Stock arrived at by multiplying the number of shares of
Cryenco Common Stock issuable upon exercise of each Cryenco
Warrant by the Exchange Ratio. The exercise price of each
Chart Warrant (per share of Chart Common Stock issuable
thereunder) shall be the exercise price of the Cryenco Warrant
exchanged therefor divided by the Exchange Ratio. All other
terms of the Chart Warrant (including the term thereof) shall
remain substantially unchanged from those of the Cryenco
Warrant.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of Cryenco. Cryenco represents and
warrants to Chart, GTC and CAC as follows:
(a) Due Organization. Cryenco is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has full corporate power and authority to own its properties and to carry on its
business as it is now being conducted, is duly qualified to do business and is
in good standing in all jurisdictions in which it is required to be so
qualified, except where the failure to so qualify or be in good standing would
not, in the aggregate, have a material adverse effect upon the business,
financial condition, results of operations or prospects of Cryenco and its
subsidiaries, taken as a whole (a "Cryenco Material Adverse Effect"), and has
received all necessary authorizations, consents and approvals of governmental
authorities material to the ownership of its properties and assets and to the
conduct of its business.
(b) Power and Authority; No Conflicts. Cryenco has full power
and authority (corporate or otherwise) to enter into and carry out the terms of
this Agreement subject to stockholder approval. The execution and delivery by
Cryenco of this Agreement and the other documents and instruments to be executed
and delivered by Cryenco pursuant hereto and thereto
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and the consummation of the transactions contemplated hereby and thereby by
Cryenco have been duly authorized by the unanimous vote of the Board of
Directors of Cryenco. This Agreement has been duly and validly executed by
Cryenco, and will, when executed and delivered, along with each other document
and instrument to be executed and delivered by Cryenco pursuant hereto,
constitute, a valid and binding agreement of Cryenco enforceable against it in
accordance with their respective terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and except to
the extent that the enforceability of rights and remedies may be limited by
general principles of equity. The execution and delivery of this Agreement does
not, and, subject to any requisite governmental or other consents or approvals,
the consummation of the transactions contemplated hereby will not (i) violate
any provision of the Certificate of Incorporation or the By-laws of Cryenco, in
each case as amended, (ii) violate or conflict with any law, ordinance, rule,
regulation, order, judgment or decree to which Cryenco or any of its
subsidiaries is subject or by which Cryenco or any of its subsidiaries is bound,
or (iii) violate or conflict with or constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets under any
term or provision of any material contract, commitment, understanding,
arrangement, agreement or restriction of any kind or character to which Cryenco
or any of its subsidiaries is a party or by which Cryenco or any of its
subsidiaries or any of their respective assets or properties may be bound or
affected. Except as set forth on Schedule 6.1(b), no consent, approval,
authorization or action by any federal, state, local or foreign governmental
agency, instrumentality, commission, authority, board or body (collectively,
"Governmental Agency") or any other third party is required in connection with
the execution and delivery by Cryenco of this Agreement and the other documents
and instruments to be executed and delivered by Cryenco pursuant hereto or the
consummation by Cryenco of the transactions contemplated herein or therein.
(c) Capital Structure. Cryenco's authorized, issued,
outstanding and reserved capital stock is, as of March 31, 1997, as set forth on
Schedule 6.1(c), and all of the outstanding shares of its capital stock have
been duly authorized and validly issued and are fully paid and nonassessable and
free from preemptive rights. There are no outstanding options, warrants,
convertible securities, subscriptions or other rights or agreements providing
for the issuance or delivery of any additional shares of capital stock of
Cryenco, except as set forth on Schedule 6.1(c). Schedule 6.1(c) lists all of
the Cryenco Options and the Cryenco Warrants and also sets forth, in the case of
each item listed thereon, the identity of the record holder thereof (or
beneficial holder, if known) the number of shares of Cryenco capital stock
issuable thereunder, the expiration date (if any) thereof and the exercise price
thereof.
(d) Subsidiaries. (i) Except as set forth on Schedule 6.1(d),
Cryenco has no subsidiaries, either wholly or partially owned. Cryenco has full
power and authority to transfer all right, title and interest in and to such
shares without the consent of any other person, and such shares are free and
clear of all liens, equities, encumbrances and claims of every kind. Each
subsidiary of Cryenco (i) is duly organized and validly existing as a
corporation under the laws of its jurisdiction of organization (ii) is duly
qualified to do business and in good standing in all
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jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and in which the failure to be so
qualified would have or reasonably be expected to have a Cryenco Material
Adverse Effect and (iii) has all requisite corporate power and authority to own
or lease its properties and assets and to carry on its business as now
conducted.
(e) SEC Documents. Cryenco has made available to Chart a true
and complete copy of each report, schedule, registration statement and
definitive proxy statement filed by Cryenco with the SEC since August 31, 1995
(as such documents have since the time of their filing been amended, the
"Cryenco SEC Documents") which are all of the documents that Cryenco was
required to file with the SEC since such date. As of their respective dates, the
Cryenco SEC Documents complied in all material respects with the requirements of
the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Cryenco SEC Documents, and
none of the Cryenco SEC Documents at the time they were filed with the SEC (or
amended) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Cryenco has previously made available to Chart copies of (i) the
consolidated balance sheets of Cryenco and its subsidiaries, as of August 31,
for the fiscal years 1995 and 1996 and the related consolidated statements of
operations, stockholders equity and cash flows for the fiscal years 1994 through
1996 inclusive as reported in Cryenco's Annual Report on Form 10-K for the
fiscal year ended August 31, 1996 filed with the SEC under the Exchange Act, in
each case accompanied by the audit report of Ernst & Young LLP, independent
auditors with respect to Cryenco and (ii) the unaudited consolidated balance
sheet of Cryenco and its subsidiaries as of February 28, 1996 and February 28,
1997 and the related unaudited consolidated statements of operations,
stockholders equity and cash flows for the periods then ended as reported in
Cryenco's Quarterly Report on Form 10-Q for the period ended February 28, 1997
filed with the SEC under the Exchange Act. The August 31, 1996 consolidated
balance sheet of Cryenco (including the related notes) fairly presents the
consolidated financial position of Cryenco and its subsidiaries as of the date
thereof and the other financial statements referred to in this Section 6.1(e)
(including the related notes, where applicable) fairly present (subject in the
case of the unaudited statements to recurring audit adjustments normal in nature
and amount), and the Cryenco financial statements hereafter filed by Cryenco
with the SEC prior to the Effective Time will fairly present (subject in the
case of the unaudited statements to recurring audit adjustments normal in nature
and amount), the results of the consolidated operations and changes in
stockholders equity and consolidated financial position of Cryenco and its
subsidiaries for the respective fiscal periods or as of the respective dates
therein set forth. Each of such statements (including the related notes, where
applicable) complies, and the Cryenco financial statements hereafter filed by
Cryenco with the SEC prior to the Effective Time will comply, in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto and each of such statements
(including the related notes, where applicable) has been, and the Cryenco
financial statements hereafter filed by Cryenco with the SEC prior to the
Effective Time will be prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied during the periods involved, except in
each case as indicated in such statements or in the notes thereto or, in the
case of
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unaudited statements, as permitted by Form 10-Q. The books and records of
Cryenco and its subsidiaries have been and are being maintained in all material
respects in accordance with GAAP and any other applicable legal and accounting
requirements and reflect only actual transactions. Except as disclosed on
Schedule 6.1 (e), to the best of its knowledge, Cryenco is not the subject of
any review, study, audit, examination, inquiry or other investigation by the SEC
("SEC Investigation"), nor, to the best knowledge of Cryenco, is any such SEC
Investigation pending or threatened.
(f) Vote Required. The affirmative vote of the holders of a
majority of the shares of Cryenco Common Stock issued and outstanding on the
record date for the Cryenco Special Meeting is the only vote of the holders of
Cryenco capital stock necessary to approve this Agreement and the Merger.
(g) Title to Assets. Except as set forth on Schedule 6.1 (g),
Cryenco and each subsidiary of Cryenco, has good, marketable and valid title in
and to all of its assets, including all real, personal and intangible property,
and except as reflected on Schedule 6.1(g), Cryenco and each subsidiary of
Cryenco holds its assets free and clear of any mortgage, conditional sale
agreement, title retention agreement, security interest, lease, pledge,
hypothecation, lien or other encumbrance.
(h) Condition of Assets. All of the assets (whether owned or
leased) that are necessary for the conduct of the business of Cryenco or any
subsidiary of Cryenco are in normal operating condition, free from defects other
than such defects as do not materially interfere with the continued use thereof
in normal operations, except as set forth on Schedule 6.1 (h) .
(i) Accounts Receivable and Accounts Payable. Cryenco has
delivered to Chart and CAC an accurate aging schedule of all of the accounts
receivable reflected on the books of Cryenco or any subsidiary of Cryenco, as of
March 31, 1997. Any account receivable due from any affiliate of Cryenco or any
affiliate of any subsidiary of Cryenco shall be paid in full in cash on or prior
to the Closing Date. Any account payable due to any affiliate of Cryenco or any
affiliate of any subsidiary of Cryenco and disclosed on Schedule 6.1(o) shall be
paid in full in cash on or prior to the Closing Date.
(j) Insurance. Cryenco (on its own behalf and on behalf of its
subsidiaries) (a) maintains insurance policies with licensed insurance carriers
on such assets, properties and businesses and against such risks as is customary
for companies engaged in its business, or (b) has reserved on its financial
statements sufficient funds to cover all losses known to it arising from such
risks. Schedule 6.1(j) sets forth a list and brief description (specifying the
insurer and describing each pending claim thereunder) of all policies, binders
or reserves of fire, liability, product liability, workers' compensation,
vehicular and other insurance or self-insurance held by or on behalf of Cryenco
or any subsidiary of Cryenco. All such policies are in full force and effect and
insure against risks and liabilities to an extent and in a manner customary in
the business in which Cryenco and its subsidiaries operate. Except for claims
identified on Schedule 6.1(j), there are no outstanding unpaid claims under any
such policy, binder or reserve. Except as specifically set forth on Schedule
6.1(j), there will be no liability of Cryenco or any Cryenco
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subsidiary, as of the Closing Date, under any such insurance policy or ancillary
agreement with respect thereto in the nature of a retroactive rate adjustment,
loss sharing arrangement or other actual or contingent liability arising wholly
or partially out of events occurring prior to the Closing Date. Cryenco has
received no notice of cancellation or nonrenewal of any such policy or binder.
There is no inaccuracy in any application for such policies or binders, or any
failure to pay premiums due. Cryenco has not received any notice from any of its
insurance carriers that any insurance premiums will be materially increased in
the future or that any insurance coverage listed on Schedule 6.1(j) will not be
available in the future on substantially the same terms as now in effect.
(k) Dividends and Distributions. From August 31, 1996 to the
date hereof, Cryenco has not declared or paid any dividends on any shares of its
capital stock, nor has it made any other payments or distributions thereon to
its stockholders. All dividends declared by Cryenco prior to August 31, 1996
have been fully paid or Cryenco has fully and properly reserved against the
payment of such dividends on its audited, consolidated balance sheet as of
August 31, 1996.
(l) Cryenco Data. Cryenco has made available to Chart, with
respect to Cryenco and each Cryenco subsidiary, all corporate minutes (other
than Directors' minutes pertaining to the Merger), charter and by-laws, books
and records, all material contracts, all product warranties, all loan
documentation, all notes, all leases, a list of all accounts receivable,
evidence of all bank accounts, an accurate and complete list of each insurance
policy currently providing coverage for the real and personal property owned,
operated or leased together with copies of such policies, information regarding
employee compensation and benefit plans, a list of all outstanding workers'
compensation, unemployment and other claims known to Cryenco as of the date
hereof, all licenses and permits that Cryenco has with respect to its
operations, and all outstanding or existing citations, complaints or reports
relating to environmental, health or safety laws or regulations (collectively,
the "Cryenco Data"). Cryenco acknowledges that Chart and CAC have relied on the
Cryenco Data in deciding to execute this Agreement and consummate the
transactions contemplated hereby.
(m) Undisclosed Liabilities. Except (i) for those liabilities
that are fully reflected or reserved against on the consolidated balance sheet
of Cryenco included in the Cryenco Form 10-Q for the quarter ended February 28,
1997, (ii) for liabilities incurred in the ordinary course of business
consistent with past practice since February 28, 1997 and (iii) as set forth in
Schedule 6.1(m), neither Cryenco nor any of its subsidiaries has incurred any
liability of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether due or to become due) that, either alone or when combined
with all similar liabilities, has had or would reasonably be expected to have a
Cryenco Material Adverse Effect.
(n) Investigation or Litigation. Except as set forth on
Schedule 6.1(n), there is no investigation or review pending or to the best
knowledge of Cryenco threatened by any Governmental Agency with respect to
Cryenco or any Cryenco subsidiary including without limitation, investigations
or reviews relating to (i) any product alleged to have been sold by Cryenco or
any Cryenco subsidiary, and alleged to have been defective or improperly
designed
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or manufactured, (ii) hazardous substances, (iii) pollution, (iv) the
environment, or (v) workers' compensation; nor has any Governmental Agency
indicated in writing to Cryenco or any Cryenco subsidiary an intention to
conduct any such investigation or review; nor, to the knowledge of Cryenco, is
there any valid basis for any such investigation or review. Except as set forth
in Schedule 6.1 (n), there is no claim, action, suit or proceeding pending
before or, to the best knowledge of Cryenco, threatened against or affecting
Cryenco or any Cryenco subsidiary at law or in equity by, any Governmental
Agency or arbitrator, including, without limitation, claims, actions, suits or
proceedings relating to (i) any product alleged to have been sold by Cryenco or
any Cryenco subsidiary, and alleged to have been defective or improperly
designed or manufactured, (ii) hazardous substances, (iii) pollution, (iv) the
environment, or (v) workers' compensation, nor is there, to the best knowledge
of Cryenco, any valid basis for any such claim, action, suit or proceeding.
(o) Certain Agreements. Except as disclosed in the Cryenco SEC
Documents filed prior to the date of this Agreement or in Schedule 6.1 (o) as of
the date of this Agreement, neither Cryenco nor any Cryenco subsidiary is a
party to any oral or written (i) consulting agreement not terminable on 60 days'
or less notice, (ii) agreement with any Director, executive officer, key
employee or affiliate of Cryenco or any Cryenco subsidiary, or (iii) agreement
or plan, including any stock option plan, stock appreciation rights plan, any of
the Plans (as defined in Section 6.1 (p)), restricted stock plan or stock
purchase plan, any of the benefits of which will be increased, or the vesting of
the benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the benefits
of which will be calculated on the basis of any of the transactions contemplated
by this Agreement.
(p) Employee Benefits.
(i) Schedule 6.1 (p) contains a true and complete
list of each bonus, deferred compensation, incentive
compensation, stock purchase, stock option, severance or
termination pay, hospitalization or other medical, life or
other insurance, supplemental unemployment benefits,
profit-sharing, pension, retirement or other employee benefit
plan, program, practice, agreement or arrangement, including,
without limitation, each "employee benefit plan" as defined in
section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), sponsored, maintained, contributed
to or required to be contributed to by Cryenco, any Cryenco
subsidiary or any trade or business, whether or not
incorporated (together with the Cryenco subsidiaries, an
"ERISA Affiliate"), which together with Cryenco or any Cryenco
subsidiary would be deemed a "single employer" within the
meaning of section 4001 of ERISA, for the benefit of current
or former employees or directors of Cryenco or any Cryenco
subsidiary (the "Plans"). Cryenco has delivered or made
available to Chart true and complete copies of all documents,
as they may have been amended to the date hereof, embodying or
relating to the Plans.
(ii) Except as set forth in Schedule 6.1(p), neither
Cryenco nor any Cryenco subsidiaries maintains any Plans that
are intended to qualify under
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sections 401 (a) or 501 (a) of the Code. Neither Cryenco nor
any current or former ERISA Affiliate sponsored, maintained,
contributed to or was required to contribute to, during the
six year period ending on the Closing Date, any Plan subject
to Title IV of ERISA or any "multiemployer plan" within the
meaning of section 3 (37) of ERISA or any multiemployer or
multiple employer welfare benefit plan.
(iii) Each of the Plans has been operated and
administered in all material respects in accordance with
applicable laws, including but not limited to ERISA and the
Code. To Cryenco's knowledge, no reportable event within the
meaning of section 403(b) of ERISA (for which the reporting
requirements have not been waived) or prohibited transaction
within the meaning of section 406 of ERISA or section 4975(c)
of the Code has occurred with respect to any Plan, no civil
penalty has been assessed pursuant to sections 409 or 502(i)
of ERISA, and no tax has been imposed pursuant to sections
4975 or 4976 of the Code.
(iv) There are no pending, or to the best knowledge
of Cryenco, threatened or anticipated claims (other than
routine claims for benefits) by, on behalf of or against any
of the Plans or any trusts related thereto.
(v) Except as specifically set forth on Schedule 6.1
(p), no Plan provides benefits, including without limitation
death or medical benefits (whether or not insured), with
respect to current or former employees or directors of the
business of Cryenco or any ERISA Affiliate beyond their
retirement or other termination of service other than coverage
mandated by applicable law or deferred compensation benefits
accrued as liabilities in compliance with applicable Financial
Accounting Standards Board requirements on the books of
Cryenco.
(vi) Except as specifically set forth in Schedule
6.1(p), with respect to each Plan that is funded wholly or
partially through an insurance policy, there will be no
liability of Cryenco or any ERISA Affiliate, as of the Closing
Date, under any such insurance policy or ancillary agreement
with respect to such insurance policy in the nature of a
retroactive rate adjustment, loss sharing arrangement or other
actual or contingent liability arising wholly or partially out
of events occurring prior to the Closing Date.
(q) Labor Matters. Except as set forth on Schedule 6.1 (q),
neither Cryenco nor any Cryenco subsidiary has entered into any collective
bargaining agreements or any other agreements with any labor organization or any
other person or group claiming to represent or bargain collectively for any of
its employees. Cryenco has delivered or made available to Chart true and correct
copies of all of the agreements described on Schedule 6.1(q). There are no
unfair labor practice charges, lawsuits, grievances or administrative charges
pending or to the best knowledge of Cryenco threatened, concerning or affecting
Cryenco or any Cryenco subsidiary. Neither Cryenco nor any Cryenco subsidiary
has received any written notice nor has there been any proceeding or
adjudication questioning whether or alleging or determining that
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Cryenco or any Cryenco subsidiary is not in compliance, in all material
respects, with all federal, state and local laws and regulations with respect to
employment, employment practices and terms and conditions of employment. There
is no work stoppage, strike, slowdown or adverse job action of any form by any
persons or labor organizations occurring or, to the knowledge of Cryenco,
threatened against Cryenco or any Cryenco subsidiary.
(r) Taxes. Cryenco has (directly or through one or more of its
subsidiaries)
(i) timely filed all tax returns, schedules,
declarations, and tax-related documents including, without
limitation, all Forms 5500 pertaining to the Plans
(collectively, "Returns") required to be filed by any
jurisdictions to which Cryenco or any Cryenco subsidiary is or
has been subject,
(ii) timely paid in full any taxes, interest and
penalties with respect to Returns, and timely made any
deposits of taxes required by taxing jurisdictions,
(iii) fully accrued on its books an amount
sufficient to pay all taxes not yet due but related to
operations through the Closing Date, and
(iv) otherwise satisfied, in all material respects,
all legal requirements applicable to Cryenco or any Cryenco
subsidiary with respect to all aforementioned obligations to
taxing jurisdictions. All tax returns filed by Cryenco or any
Cryenco subsidiary accurately reflect in all material respects
all income, expenses, deductions, credits and loss carryovers
and the taxes due and are otherwise accurate and complete in
all material respects. Except for consequences arising from
the transactions contemplated by this Agreement, to Cryenco's
knowledge, there have been no events that would impair the
full availability of the net operating losses available
against future state taxes in the State of Colorado as
reflected on Cryenco's audited consolidated balance sheet as
of August 31, 1996. Cryenco has delivered to Chart true and
complete copies of all federal and state income and franchise
tax returns for each of the taxable years ended August 31,
1994 through August 31, 1996, inclusive. The most recent
period for which an assessment can no longer be made by the
IRS with respect to Cryenco's federal income tax is for the
fiscal year ended August 31, 1993. Cryenco has no knowledge
that an audit of any of the federal income tax returns of
Cryenco is in progress and has no reason to believe that any
such audit is contemplated. To Cryenco's knowledge, there are
no other claims asserted for (or to the knowledge of Cryenco
any substantial basis therefor), taxes or assessments. For
purposes of this Section, "tax" and "taxes" (when not modified
by other words such as "income" or "franchise") shall include
all income, gross receipts, franchise, payroll, excise, real
and personal property, and other taxes imposed by any foreign,
federal, state, municipal, local, or other governmental
agency, including assessments in the nature of taxes.
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(s) Absence of Certain Changes. Except as disclosed on
Schedule 6.1 (s), since February 28, 1997, neither Cryenco nor any Cryenco
subsidiary has suffered any Cryenco Material Adverse Effect.
(t) Legal Compliance. Cryenco and each Cryenco subsidiary has
complied in all material respects with all applicable laws, rules, regulations,
and ordinances of any Governmental Agency having jurisdiction, any trademark,
tradename or copyright rules and regulations, and any zoning, occupational
safety or environmental protection laws or any laws relating to the employment
of labor. Neither Cryenco nor any Cryenco subsidiary is in violation of, or in
default under, any terms or provisions of any material mortgage, indenture,
security agreement, lease, license, contract, agreement, instrument, order,
arbitration award, judgment, injunction or decree. Neither Cryenco nor any
Cryenco subsidiary has received any written notice nor to Cryenco's knowledge
has there been any proceeding or adjudication questioning whether or alleging or
determining that the business of Cryenco or any Cryenco subsidiary is or has
been conducted in violation of any law, ordinance, regulation, order, decree,
judgment or injunction. Neither Cryenco nor any Cryenco subsidiary has received
any written notice nor has there been any proceeding or adjudication questioning
whether or alleging or determining it has not obtained all permits, licenses and
other authorizations which relate to its assets or business. Neither Cryenco nor
any Cryenco subsidiary has received any written notice nor has there been any
proceeding or adjudication questioning whether or alleging or determining that
it is not in compliance in all material respects with all material terms and
conditions of such permits, licenses and authorizations.
(u) Environmental Protection.
(i) Except as set forth on Schedule 6.1(u), Cryenco
and each Cryenco subsidiary is in compliance with all
Environmental Laws (as hereinafter defined) applicable to the
business of Cryenco and each Cryenco subsidiary, which
compliance includes, but is not limited to, the possession by
Cryenco and each Cryenco subsidiary of all permits and other
governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and
conditions thereof. Neither Cryenco nor any Cryenco subsidiary
has received any written communication, whether from a
Governmental Agency, citizens group, employee or otherwise,
that alleges that the business of Cryenco or any Cryenco
subsidiary is not in such compliance. To the best knowledge of
Cryenco, there are no circumstances that may prevent or
interfere with such compliance in the future. All permits and
other governmental authorizations currently held by Cryenco
and each Cryenco subsidiary pursuant to the Environmental Laws
are identified on Schedule 6.1(u).
(ii) Except as set forth in Schedule 6.1 (u), there
is no Environmental Claim pending or, to the best knowledge of
Cryenco, threatened against Cryenco or any Cryenco subsidiary
or against any person or entity whose liability for any
Environmental Claims Cryenco or any Cryenco subsidiary has or
may have retained or assumed either contractually or by
operation of law.
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(iii) Cryenco has disclosed to Chart all outside
consultants' reports, internal memoranda, legal documents
involving third parties, and any other information, written or
otherwise, in the possession of Cryenco or any Cryenco
subsidiary that relates to the release, emission, discharge or
disposal of any Materials of Environmental Concern (as defined
below).
(iv) Without in any way limiting the generality of
the foregoing, (A) all on-site and off-site locations where
Cryenco or any Cryenco subsidiary has stored, disposed or
arranged for the disposal of Materials of Environmental
Concern since August 31, 1989, are identified in Schedule 6.1
(u), (B) all existing underground storage tanks and all areas
impacted by former underground storage tanks, and the capacity
and contents of such existing tanks located on property owned
or leased by Cryenco or any Cryenco subsidiary are identified
in Schedule 6.1 (u) and (C) neither Cryenco nor any Cryenco
subsidiary has any liability or potential liability for
remediation cost at any present or former site where its
business is or was conducted which is reasonably expected to
exceed $100,000 in the aggregate.
(v) "Environmental Claim" means any claim, action,
cause of action, investigation or notice (written or oral)
("Claim") by any person or entity alleging potential liability
(including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal
injuries, or penalties) arising out of, based on or resulting
from (A) the presence, or release into the environment of any
Materials of Environmental Concern at any location, whether or
not owned by Cryenco or any Cryenco subsidiary or (B)
circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law by Cryenco or any Cryenco
subsidiary; provided, however, that no such Claim, or group of
Claims arising from a single activity or incident, shall be
considered to be an Environmental Claim under this provision
unless the value of such Claim or group of Claims is in excess
of One Hundred Thousand Dollars ($100,000).
(vi) "Environmental Laws" means all federal, state,
local and foreign laws and regulations relating to pollution
or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water,
land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of
Environmental Concern.
(vii) "Materials of Environmental Concern" means
chemicals, pollutants, contaminants, wastes, hazardous or
toxic substances, petroleum and petroleum products.
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(v) Patents, Copyrights, Trademarks, Trade Names etc. Schedule
6.1 (v) hereto contains an accurate and complete list of all material patents,
patent applications, trademark registrations, trademark applications, service
marks, trade names and assumed names used by Cryenco or any Cryenco subsidiary
in its business which are presently owned or held by Cryenco or any Cryenco
subsidiary or under which it owns or holds any license or other interest. Such
items of intellectual property constitute all such items used by Cryenco or any
Cryenco subsidiary in its business. Neither Cryenco nor any Cryenco subsidiary
has received written notice nor to Cryenco's knowledge has there been any
proceeding or adjudication questioning whether or alleging or determining that
the use thereof by Cryenco or any Cryenco subsidiary infringes on or conflicts
with any existing patents, trademarks or copyrights or any other rights of any
person. Neither Cryenco nor any Cryenco subsidiary has received any written
notice of any material claim of a third party to the use of any such names.
Cryenco and its subsidiaries have the right to use such patents, trademarks,
trade names and copyrights in the business in which they are currently being
used and the consummation of the transactions contemplated hereby will not alter
or impair any such rights. Neither Cryenco nor any Cryenco subsidiary has
received any written notice nor to Cryenco's knowledge has there been any
material proceeding or adjudication questioning whether or alleging or
determining that any services provided or products manufactured or sold by
Cryenco or any Cryenco subsidiary nor any patents, formulae, processes,
know-how, trade secrets, trademarks, trade names, assumed names, copyrights or
designations used by Cryenco or any Cryenco subsidiary in its business, infringe
on any existing patents, trademarks or copyrights, or any other rights of any
person or corporate entity. To the knowledge of Cryenco, any license included in
the intellectual property of Cryenco or any Cryenco subsidiary constitutes a
valid and binding agreement of the other party thereto enforceable in accordance
with its terms.
(w) Contracts. Each contract and commitment (whether written
or oral) that individually involves potential future payments by or to Cryenco
or any Cryenco subsidiary of $100,000 or more is disclosed on Schedule 6.1(w)
and copies of such written contracts or commitments have been provided to Chart.
Except as set forth on such schedule, neither Cryenco nor any Cryenco
subsidiary, nor has been during the past three years, a partner in any
partnership or a party to any joint venture.
(x) Full Disclosure. There is no fact or set of circumstances
known to Cryenco, which has not been disclosed to Chart in writing, that has
caused since August 31, 1996, or would reasonably be anticipated to result in, a
Cryenco Material Adverse Effect.
(y) Brokers or Finders. Neither Cryenco nor any Cryenco
subsidiary has incurred or will incur, any liability for any brokerage fees,
commissions, finders' fees or similar fees or expenses in connection with this
Agreement or the transactions contemplated hereby.
6.2 Representations and Warranties of Chart, GTC and CAC. Chart, GTC
and CAC represent and warrant to Cryenco as follows:
(a) Due Organization. Chart is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has full corporate power and
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authority to own its properties and to carry on its business as it is now being
conducted, is duly qualified to do business and is in good standing in all
jurisdictions in which it is required to be so qualified, except where the
failure to so qualify or be in good standing would not, in the aggregate, have a
material adverse effect upon the business, financial condition, results of
operations or prospects of Chart and its subsidiaries, taken as a whole (a
"Chart Material Adverse Effect"), and has received all necessary authorizations,
consents and approvals of governmental authorities material to the ownership of
its properties and assets and to the conduct of its business.
(b) Power and Authority, No Conflicts. Each of Chart, GTC and
CAC has full power and authority (corporate or otherwise) to enter into and
carry out the terms of this Agreement. The execution and delivery of this
Agreement and the other documents and instruments to be executed and delivered
by Chart, GTC and CAC pursuant hereto and thereto and the consummation of the
transactions contemplated hereby and thereby by Chart, GTC and CAC have been
duly authorized by the Boards of Directors of Chart, GTC and CAC, and by GTC as
the sole stockholder of CAC. This Agreement has been duly and validly executed
and delivered by each of Chart, GTC and CAC and constitutes, when executed and
delivered, along with the other documents and instruments to be executed and
delivered by each of Chart, GTC and CAC pursuant hereto, valid and binding
agreements of Chart, GTC and CAC, enforceable against each of Chart, GTC and CAC
in accordance with their respective terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and except to
the extent that the enforceability of rights and remedies may be limited by
general principles of equity. The execution and delivery of this Agreement does
not, and, subject to any requisite governmental or other consents or approvals
the consummation of the transactions contemplated hereby and thereby will not
(i) violate any provision of the Certificate of Incorporation or the by-laws of
each of Chart, GTC and CAC, (ii) violate or conflict with any law, ordinance,
rule, regulation, order, judgment or decree to which either Chart, GTC or CAC is
subject or by which either Chart, GTC or CAC is bound, or (iii) violate or
conflict with or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or will result in the
termination of, or accelerate the performance required by, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or the assets under, any term or provision of any contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which Chart, GTC or CAC is a party or by which either of them or
any of their assets or properties may be bound or affected. Except as set forth
in Schedule 6.2(b), no consent, approval, authorization or action by any
Governmental Agency or any other third party is required in connection with the
execution and delivery by each of Chart, GTC and CAC of this Agreement and the
other documents and instruments to be executed and delivered by each of Chart,
GTC and CAC pursuant hereto or the consummation by each of Chart, GTC and CAC of
the transactions contemplated herein or therein.
(c) Financing of the Merger. Chart, GTC and CAC have all
funds, or appropriate commitments for funds, necessary for the exchange of all
outstanding shares of Cryenco Common Stock and Cryenco Preferred Stock pursuant
to the Merger.
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(d) Brokers and Finders. Neither Chart nor GTC nor CAC has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions, finders' fees or similar fees or expenses in connection with this
Agreement or the transactions contemplated hereby.
(e) Financial Condition. Chart's audited, consolidated balance
sheet, included in its Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, was prepared in accordance with GAAP, and fairly presents the
financial position of Chart as of the date thereof. Since the date of said
balance sheet, no change to Chart's financial condition has occurred which would
reasonably be anticipated to adversely affect its ability to make the payments
necessary to consummate the Merger, as contemplated by this Agreement.
ARTICLE VII
CONDITIONS
7.1 Conditions Precedent to the Obligations of All Parties. The
obligations of each of Cryenco, Chart, GTC and CAC under this Agreement are
subject to and shall be conditional upon the satisfaction of each of the
following conditions prior to the Closing Date:
(a) Stockholder Approval. This Agreement shall have been
approved and adopted by the affirmative vote of the holders of a majority of the
issued and outstanding shares of Cryenco Common Stock.
(b) Governmental Approvals. Cryenco and Chart shall have made
all filings with, and all relevant waiting periods shall have expired (including
all filings required to be made under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and waiting period in connection therewith), and given
all notices to and obtained all necessary consents, authorizations and approvals
from, all Governmental Agencies which are required to consummate the
transactions contemplated in this Agreement.
(c) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order, restraint or
prohibition shall have been issued by any court of competent jurisdiction
preventing the consummation of the transactions contemplated by this Agreement
(each party agreeing to use its reasonable best efforts, including appeals to
higher courts, to have any such order, injunction, legal restraint or
prohibition set aside or lifted), and no action shall have been taken, and no
statute, rule or regulation shall have been enacted, by any state or Federal
government or Governmental Agency that would prevent the consummation of the
transactions contemplated by this Agreement.
7.2 Conditions Precedent to the Obligations of Cryenco. The obligations
of Cryenco under this Agreement are subject to and shall be conditional upon the
satisfaction, or waiver (in whole or in part) by Cryenco, of each of the
following conditions:
(a) Representations and Warranties True. The representations
and warranties of Chart, GTC and CAC contained herein shall have been true and
correct in all material respects on and as of the date of this Agreement, and
shall be true and correct in all material respects on
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and as of the Closing Date as if those representations and warranties were made
on and as of the Closing Date, except for changes permitted by the terms of this
Agreement and except insofar as any of those representations and warranties
relate solely to a particular date or period, in which case they shall be true
and correct in all material respects on and as of the Closing Date with respect
to such date or period.
(b) Performance of Obligations and Agreements. Chart, GTC and
CAC shall each have performed, in all material respects, their obligations and
agreements contained in this Agreement to be performed or complied with by them
on or before the Closing Date.
(c) Resolutions. Each of Chart, GTC and CAC shall have
delivered to Cryenco copies of the resolutions of its Board of Directors
authorizing and approving the execution of this Agreement and the consummation
of the transactions contemplated hereby, certified as true and correct on the
Closing Date by its Secretary or an Assistant Secretary.
(d) Officers' Certificates. Each of Chart, GTC and CAC shall
have delivered to Cryenco a certificate dated on and as of the Closing Date and
signed by its Chief Executive Officer and Chief Financial Officer to the effect
that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied.
7.3 Conditions Precedent to the Obligations of Chart, GTC and CAC. The
obligations of Chart, GTC and CAC under this Agreement are subject to and shall
be conditional upon the satisfaction, or waiver (in whole or in part) by Chart,
GTC and CAC of each of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of Cryenco contained herein shall have been true and correct in
all material respects on and as of the date of this Agreement, and shall be true
and correct in all material respects on and as of the Closing Date as if those
representations and warranties were made on and as of the Closing Date, except
for changes permitted by the terms of this Agreement and except insofar as any
of those representations and warranties relate solely to a particular date or
period, in which case they shall be true and correct in all material respects on
and as of the Closing Date with respect to such date or period.
(b) Performance of Obligations and Agreements. Cryenco shall
have performed, in all material respects, its obligations and agreements
contained in this Agreement to be performed or complied with by it on or before
the Closing Date.
(c) Resolutions. Cryenco shall have delivered to Chart copies
of the resolutions of its Board of Directors and Stockholders, authorizing and
approving the execution of this Agreement and the consummation of the
transactions contemplated hereby, certified as true and correct on the Closing
Date by its Secretary or an Assistant Secretary.
(d) Officer's Certificate. Cryenco shall have delivered to
Chart a certificate dated on and as of the Closing Date and signed by the Chief
Executive Officer and the Chief
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Financial Officer of Cryenco to the effect that the conditions set forth in
Sections 7.3(a) and 7.3(b) have been satisfied.
(e) Consents and Approvals. Cryenco shall have obtained any
consent, authorization or approval to the transactions contemplated by the
Agreement which is required to be obtained from any third party which is not a
Governmental Agency.
(f) No Cryenco Material Adverse Effect. From the date of this
Agreement through the Closing Date, Cryenco shall not have suffered a Cryenco
Material Adverse Effect.
(g) Dissenters Claims. Cryenco has not received a written
demand for appraisal from the holders of more than fifteen percent (15%) of the
issued and outstanding shares of Cryenco Common Stock in connection with the
Merger.
(h) Cryenco Arrangements with Affiliated Persons. Prior to
Closing, Cryenco shall have terminated the agreements and arrangements listed on
Schedule 6.1(o) ("Insider Agreements") hereto between Cryenco and certain
affiliated persons (including, but not limited to, directors, officers, key
employees and affiliates) by payment of the amounts set forth on Schedule 6.1(o)
but without any other expense to or obligation on the part of Cryenco, Chart or
CAC.
(i) Cancellation, Exercise, Sale or Exchange of Cryenco
Warrants and Options. Cryenco shall have obtained and delivered to Chart written
agreements from the holders of the Cryenco Warrants and Cryenco Options listed
on Schedule 6.1(c) exercising such Warrants or Options, agreeing to the
cancellation thereof, agreeing to the sale thereof to Chart pursuant to this
Agreement or agreeing to the exchange thereof for warrants or options to acquire
shares of Chart Common Stock pursuant to the provisions of Sections 5.3(f) and
5.3(g) above.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time, whether before or after approval of this Agreement and the
Merger by the stockholders of Cryenco:
(a) by mutual consent of Cryenco and Chart;
(b) by Chart, upon a breach of any representation, warranty,
covenant or agreement on the part of Cryenco set forth in this Agreement, or if
any representation or warranty of Cryenco shall have become untrue, in either
case such that the condition set forth in Section 7.3(a) or Section 7.3(b) as
the case may be, would be incapable of being satisfied by August 29, 1997;
provided, that in any case, a willful breach shall be deemed to cause such
conditions to be incapable of being satisfied for purposes of this Section
8.1(b);
(c) by Cryenco, upon a breach of any representation, warranty,
covenant or agreement on the part of Chart set forth in this Agreement, or if
any representation or warranty of
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Chart shall have become untrue, in either case such that the condition set forth
in Section 7.2(a) or 7.2(b), as the case may be, would be incapable of being
satisfied by August 29, 1997; provided, that in any case, a willful breach shall
be deemed to cause such conditions to be incapable of being satisfied for
purposes of this Section 8.1(c);
(d) by either Cryenco or Chart, if any permanent injunction or
action by any Governmental Agency preventing the consummation of the Merger
shall have become final and nonappealable;
(e) by either Cryenco or Chart, if the Merger shall not have
been consummated before August 29, 1997; provided, however, that this Agreement
may be extended by written notice of either Cryenco or Chart to a date not later
than September 30, 1997, if the Merger shall not have been consummated as a
direct result of Cryenco or Chart having failed by August 29, 1997, to receive
all required regulatory approvals or consents from Governmental Agencies with
respect to the Merger;
(f) by either Cryenco or Chart, if this Agreement and the
Merger shall fail to receive the requisite vote for approval and adoption by the
holders of Cryenco Common Stock at the Cryenco Special Meeting;
(g) by Chart, if (i) the Board of Directors of Cryenco shall
withdraw, modify or change its recommendation of this Agreement or the Merger in
a manner adverse to Chart or shall have resolved to do any of the foregoing;
(ii) the Board of Directors of Cryenco shall have recommended to the
stockholders of Cryenco a Competing Transaction (as defined below); (iii) a
tender offer or exchange offer for 25% or more of the outstanding shares of
Common Stock of Cryenco is commenced, and the Board of Directors of Cryenco
recommends that the stockholders of Cryenco tender their shares in such tender
or exchange offer; or (iv) subsequent to the date hereof, any person shall
acquire beneficial ownership or the right to acquire beneficial ownership of, or
any "group" (as such term is defined under Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder) shall have been formed which
beneficially owns, more than 25% of the then outstanding shares of Common Stock
of Cryenco; provided, however, that for purposes of the foregoing definition of
"group," the Voting Agreements described in Section 9.8 shall not be deemed to
form the basis for determination that the signers thereof constitute a "group;"
(h) by Cryenco, if the Board of Directors of Cryenco (x) fails
to make or withdraws or modifies its recommendation that Cryenco stockholders
approve the Merger (as described in Section 5.3(a)), and there exists at such
time a Competing Transaction or (y) recommends to Cryenco's stockholders
approval or acceptance of a Competing Transaction, in each case only if the
Board of Directors of Cryenco, after consultation with and based upon the advice
of independent legal counsel (who may be such party's regularly engaged
independent legal counsel), determines in good faith that such action is
necessary for the Board of Directors of Cryenco to comply with its fiduciary
duties to stockholders under applicable law; and
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(i) by Chart, if Cryenco shall have received a written demand
for appraisal from the holders of more than 15% of the issued and outstanding
shares of Cryenco Common Stock in connection with the Merger.
In order to terminate this Agreement pursuant to Section 8.1(b) - (h) hereof,
the party so acting shall give written notice thereof to the other party hereto
specifying the reason for termination.
8.2 Effect of Termination. Except as provided in Section 8.5 or Section
9.1(b), in the event of the termination of this Agreement pursuant to Section
8.1, this Agreement shall forthwith become void, there shall be no liability on
the part of Chart, CAC or Cryenco or any of their respective officers or
directors to the other and all rights and obligations of any party hereto shall
cease; provided, however, that nothing herein shall relieve any party from
liability for the willful breach of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
8.3 Amendment. This Agreement may be amended by the parties hereto by
action taken by or on behalf of their respective Boards of Directors at any time
prior to the Effective Time; provided, however, that, after approval of the
Merger by the stockholders of Cryenco, no amendment, which under applicable law
may not be made without the approval of the stockholders of Cryenco, may be made
without such approval. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
8.4 Waiver. At any time prior to the Effective Time, either party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other party hereto, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance by the other party
with any of the agreements or conditions contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by
the party or parties to be bound thereby.
8.5 Fees, Expenses and Other Payments.
(a) Except as set forth in Section 8.5(b), all costs and
expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred by the parties hereto shall be
borne solely and entirely by the party which has incurred such costs and
expenses (with respect to such party, its "Expenses").
(b) Cryenco agrees that if this Agreement shall be terminated
pursuant to:
(i) Section 8.1(b) and, at any time prior to the
written notice of termination delivered by Chart to Cryenco,
there existed a Competing Transaction;
(ii) Section 8.1(f) and at any time between the date
hereof and the Cryenco Special Meeting there existed a
Competing Transaction;
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(iii) Section 8.1(g);
(iv) Section 8.1(h); or
(v) Section 8.1(i) and one or more of the affiliates
of Cryenco executing a Voting Agreement in connection with the
Merger has made a written demand for appraisal with respect to
5% or more of the Cryenco Common Stock entitled to vote on the
Merger;
then, in any such event, Cryenco shall pay to Chart an amount equal to $850,000.
(c) Any payment required to be made pursuant to Section 8.5(b)
shall be made as promptly as practicable but not later than five business days
after termination of this Agreement and shall be made by wire transfer of
immediately available funds to an account designated by Chart.
(d) For purposes of this Section 8.5, the term "Competing
Transaction" shall mean any of the following (other than the Merger) involving
Cryenco or any of its subsidiaries:
(i) any merger, consolidation, share exchange,
business combination or other similar transaction;
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition of 25% or more of the assets of
Cryenco and its subsidiaries, taken as a whole, in a single
transaction or series of transactions;
(iii) any tender offer or exchange offer for 25% or
more of the outstanding shares of Common Stock of Cryenco or
the filing of a registration statement under the Securities
Act in connection therewith;
(iv) any person acquiring (after the date hereof)
beneficial ownership or the right to acquire beneficial
ownership of, or any "group" (as such term is defined under
Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder) being formed (after the
date hereof) which beneficially owns or has the right to
acquire beneficial ownership of, 25% or more of the then
outstanding shares of Common Stock of Cryenco; provided,
however, that for purposes of the foregoing definition of
"group," the Voting Agreements described in Section 9.8 shall
not be deemed to form the basis for determination that the
signers thereof constitute a "group;"
(v) any public announcement of a proposal, plan or
intention to do any of the foregoing or any agreement to
engage in any of the foregoing.
ARTICLE IX
GENERAL PROVISIONS
9.1 Effectiveness of Representations, Warranties and Agreements.
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(a) Except as set forth in Section 9.1(b), the
representations, warranties and agreements of each party hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any other party hereto, any person controlling any such party or
any of their officers or directors, whether prior to or after the execution of
this Agreement.
(b) The representations, warranties and agreements in this
Agreement shall terminate at the Effective Time or upon the termination of this
Agreement pursuant to Article VIII, except that the agreements set forth in
Articles I, II, III and IX and Sections 5.1(e) and 5.4(a) shall survive the
Effective Time and those set forth in Sections 8.2, 8.5 and Article IX hereof
shall survive termination. In addition, in the event of the termination of this
Agreement pursuant to Article VIII, the provisions of the Confidentiality
Agreement dated as of November 11, 1996 shall be reinstated as if they had never
been superseded by Section 9.8 hereof.
9.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given (and shall be deemed to have
been duly received if so given), when addressed as follows:
To Chart at:
Chart Industries, Inc.
00000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX
Attention: Xxxxxx X. Xxxxxx, Chairman of the Board
and Chief Executive Officer
With a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. XxXxx
To Cryenco at:
Cryenco Sciences, Inc.
c/o Charterhouse Group International, Inc.
000 Xxxxxxx Xxxxxx - 28th Floor
New York, New York 10022
Attention: Xxxxxx Xxxxxxxxx, Chairman of the Board,
Chief Executive Officer and President
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With a copy to:
Shack & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Except as otherwise specified herein, all notices and other
communications shall be deemed to have been duly given on the first to occur of
(a) the date of delivery if delivered personally on a business day during normal
business hours, and, if not, on the next occurring business day, (b) five days
following posting if transmitted by mail, (c) the first business day following
the date of delivery to a nationally-recognized, next day courier service; or
(d) the date of receipt if transmitted by telecopier or facsimile on a business
day during normal business hours, and, if not, on the next occurring business
day. Any party may change his or its address for purposes hereof by notice to
the other party given as provided in this Section.
9.3 Governing Law. Except to the extent required to comply with the
provisions of other jurisdictions, this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law.
9.4 Successors. References in this Agreement to particular persons,
firms, agencies, statutes, regulations and the like shall be considered as
references to any successors thereto.
9.5 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests, or obligations hereunder is otherwise assignable, or
shall be assigned (whether by operation of law or otherwise), by any of the
parties without the prior written consent of the other parties.
9.6 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which together shall
constitute one and the same agreement.
9.7 Schedules. Cryenco, Chart, GTC and CAC have, simultaneously with
the execution of this Agreement, initialed the front page of the Schedules which
are referred to herein.
9.8 Entire Agreement. This Agreement and the Schedules referred to
herein contain the entire agreement among the parties hereto with respect to the
Merger and the other transactions contemplated hereby, and supersedes all prior
agreements among the parties with respect to such matters including, without
limitation, the Confidentiality Agreement dated November 11, 1996.
Simultaneously herewith, (a) certain affiliates of Cryenco are entering into
agreements pursuant to which such affiliates agree under certain conditions, to
vote in favor of the Merger at the Cryenco Special Meeting (the "Voting
Agreements") and (b) Charterhouse
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Group International, Inc. and Xxxxxx Xxxxxxxxx are entering into agreements to
indemnify and hold Chart harmless from and against certain liabilities (the
"Indemnification Agreement").
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed as of the date first above written.
CHART INDUSTRIES, INC.
By: __________________________________
GREENVILLE TUBE CORPORATION
By: _______________________________
CHART ACQUISITION COMPANY, INC.
By: __________________________________
CRYENCO SCIENCES, INC.
By: __________________________________
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