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Exhibit 4.4
AMENDMENT TO WARRANT AGREEMENT
This Amendment to Warrant Agreement is made as of this 31st day of July,
1997, by and between The Chase Manhattan Bank (formerly known as Chemical Bank)
(the "Holder"), Cryenco Sciences, Inc., a Delaware corporation (f/k/a Cryenco
Holdings, Inc.) ("Cryenco") and Chart Industries, Inc., a Delaware corporation
("Chart").
WHEREAS, the Holder and Cryenco, among others, are parties to a warrant
agreement dated as of August 30, 1991, as amended, and letter agreements dated
as of August 12, 1992 and August 31, 1993 (the "Warrant Agreement"), pursuant to
which Cryenco granted the Holder a warrant or warrants (the "Cryenco Warrants")
to purchase an aggregate of 43,403 shares of Cryenco Class B common stock, par
value $.01 per share (the "Cryenco Common Stock") (such 43,403 shares having
been adjusted to reflect the reverse stock split of Cryenco Common Stock
effective August 13, 1992 and the antidilution adjustments triggered by
Cryenco's Private Placement and related transactions with International Capital
Partners, Inc. which occurred in December 1994, January 1995 and June 1995);
WHEREAS, Cryenco and Chart entered into a Plan and Agreement of Merger
dated as of April 30, 1997 (the "Merger Agreement") providing for the merger of
an affiliate of Chart into Cryenco (the "Merger") and the conversion of all
issued and outstanding Cryenco Common Stock (other than dissenters' shares) into
cash in the amount of $2.75 per share;
WHEREAS, in Section 5.4(b)(iii) of the Merger Agreement, Chart has agreed
to offer to grant substitute warrants (the "Chart Warrants") to purchase shares
of Chart's common stock, par value $.01 per share (the "Chart Common Stock), in
exchange for the Cryenco Warrants; and
WHEREAS, the Holder, Cryenco and Chart now desire that, in satisfaction of
Chart's obligations under Section 5.4(b)(iii) of the Merger Agreement, the
Cryenco Warrants be amended to provide the Holder with the right to purchase
Chart Common Stock in substitution for the right to purchase Cryenco Common
Stock.
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements and undertakings set forth herein, the parties hereby agree as
follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the Merger Agreement.
2. AMENDMENT. As of the effective time of the Merger (the "Effective
Time"), the Warrant Agreement and the Cryenco Warrants issued thereunder are
hereby amended as follows:
(a) CHART COMMON STOCK SUBSTITUTED FOR CRYENCO COMMON STOCK. All
references to the right of the Holder to purchase shares of
Cryenco
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Common Stock shall be deemed to be the right to purchase shares of
Chart Common Stock.
(b) ADJUSTMENT TO NUMBER OF SHARES UNDERLYING WARRANT. The number
of shares of Chart Common Stock issuable upon exercise of each
Chart Warrant which is issued in substitution for a Cryenco
Warrant shall be the product of (i) the number of shares of
Cryenco Common Stock that were issuable upon exercise of the
corresponding Cryenco Warrant immediately prior to the
Effective Time times (ii) a fraction (the "Exchange Ratio")
the numerator of which shall be $2.75 and the denominator of
which shall be the average of the closing sales price of Chart
Common Stock on the New York Stock Exchange as reported by the
Wall Street Journal for the ten trading days immediately
preceding the Effective Time; provided, however, that in no
event shall the Exchange Ratio be less than .165 nor more than
.206.
(c) ADJUSTMENT TO PURCHASE OR EXERCISE PRICE. The purchase or
exercise price per share of Chart Common Stock subject to a
Chart Warrant shall be equal to (i) the purchase or exercise
price per share of Cryenco Common Stock in the corresponding
Cryenco Warrant divided by (ii) the Exchange Ratio.
(d) NOTICES. Any notices, requests, forms, certificates or other
documents or communications deliverable to Cryenco under the
Warrant Agreement shall be required to be delivered instead to
Chart at 00000 Xxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000, to the
attention of the Chief Financial Officer, with a copy to
Xxxxxx, Halter & Xxxxxxxx LLP, 1400 XxXxxxxx Investment
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention:
Xxxxxx X. XxXxx.
(e) SUBSTITUTION OF WARRANTS. Chart and the Holder agree that any
and all Cryenco Warrants and/or Cryenco Warrant certificates
issued pursuant to the Warrant Agreement shall be amended in a
manner consistent with the provisions of this Amendment and
that, upon the Holder's presentation to Chart of such Cryenco
Warrants or Cryenco Warrant certificates, Chart shall deliver
to the Holder, in exchange and substitution therefor, new
Chart Warrants or Chart Warrant certificates.
3. FULL COMPLIANCE: ASSUMPTION OF CRYENCO'S OBLIGATIONS: REFERENCES TO
CRYENCO. The Holder acknowledges and agrees that, as of the Effective Time,
Cryenco is in full compliance with all of its obligations under the Warrant
Agreement, the Cryenco Warrants and any related agreements pertaining to
registration rights of the Holder with respect to the shares of Cryenco Common
Stock issuable upon exercise of the Cryenco Warrants. As of the Effective Time,
Chart assumes all of the obligations of Cryenco under the Warrant Agreement as
amended
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hereby, and all references to Cryenco in the Warrant Agreement shall be deemed
to be references to Chart. To the extent that Holder is party to a separate
registration rights agreement relating to Cryenco Common Stock, promptly after
the Effective Time, Chart and the Holder shall enter into such supplemental
agreement as may be necessary to provide the Holder with equivalent registration
rights relating to Chart Common Stock issuable upon exercise of the Chart
Warrants.
4. RECEIPT OF CHART DISCLOSURES. The Holder acknowledges that it has
received copies of Chart's 1996 Form 10-K Report and Chart's Form 1O-Q Report
for the three-month period ended March 31, 1997.
5. NO RIGHT TO PURCHASE CRYENCO COMMON STOCK. At and after the Effective
Time, the Holder shall be deemed to have surrendered any and all rights under
the Warrant Agreement and Warrant to purchase Cryenco Common Stock.
6. CONSENT TO AMENDMENT. By the execution and delivery of this and
Amendment, the Holder shall be deemed to have consented to the terms hereof in
accordance with the terms of the Warrant Agreement.
7. NO OTHER AMENDMENTS. Except as specifically provided herein or as
otherwise necessary or appropriate to effectuate the intent of this Amendment,
the provisions of the Cryenco Warrant shall remain in full force and effect
without any alteration or modification thereto. Without limiting the generality
of the foregoing, the date of grant and the date of termination of the Cryenco
Warrant shall continue to be such dates as were in effect immediately prior to
the Effective Time.
8. SUCCESSORS AND ASSIGNS. This Amendment and all of the provisions
hereof shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
9. GOVERNING LAW. This Amendment shall be, and the Warrant Agreement
shall be amended to provide that it shall be, governed by and construed in
accordance with, the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
10. SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
11. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
CHART INDUSTRIES, INC.
/s/ Xxx X. Xxxxxx
Attest: /s/ Xxxx X. Xxxxxx ---------------------------
----------------------- By: Xxx X. Xxxxxx
Title: CFO and Treasurer
THE CHASE MANHATTAN BANK (formerly
known as CHEMICAL BANK)
Attest: By: /s/ Xxxxx X. Xxxx
----------------------- --------------------------
By: Xxxxx X. Xxxx
Title: Vice President
CRYENCO SCIENCES, INC.
Attest:
----------------------- ---------------------------
By: Xxxxx X. Xxxxx
Title: Vice President
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