Registration No. 33-
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Union Carbide Corporation
(Exact name of registrant as specified in its charter)
New York 13-1421730
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
39 Old Ridgebury Road, Danbury, CT 06817-0001
(Address of principal executive offices)
The Union Carbide Corporation
Compensation Deferral Program
(Full title of the plan)
Joseph E. Geoghan
Vice President, General Counsel and Secretary
Union Carbide Corporation
39 Old Ridgebury Road,
Danbury, CT 06817-0001
(Name and address of agent for service)
(203) 794-2000
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered(1) offering price(2) aggregate offering registration
registered price (2) fee
<S> <C> <C> <C> <C>
Deferred $25,000,000 100% $25,000,000 $8,621
Compensation
Obligations
<FN>
(1) The Deferred Compensation Obligations are unsecured obligations of Union Carbide Corporation to pay deferred compensation
in the future in accordance with the terms of The Union Carbide Corporation Compensation Deferral Program.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act
of 1933, as amended.
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified by Part
I of this Form S-8 Registration Statement (the "Registration
Statement") will be sent or given to participants in The Union
Carbide Corporation Compensation Deferral Program (the "Plan") of
Union Carbide Corporation, a New York corporation (the
"Company"), as specified in Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). Such
document(s) are not being filed with the Commission but
constitute (along with the documents incorporated by reference
into the Registration Statement pursuant to Item 3 of Part II of
this Registration Statement), a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with
the Commission and are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the
year ended December 31, 1995.
(b) All documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Deferred Compensation Obligations
Pursuant to the terms of the Plan, eligible employees (each
a "Participant") of the Company or one of its participating
subsidiaries may enter into agreements to defer a specified
percentage of their base salary and variable compensation
payments. The amount of base salary and variable compensation
payments deferred under such agreements are referred to herein as
"Deferred Compensation Obligations". The Deferred Compensation
Obligations of the Company under such agreements will be
unsecured general obligations of the Company to pay the deferred
compensation in the future in accordance with the terms of the
Plan and will rank equally with other unsecured and
unsubordinated indebtedness of the Company from time to time
outstanding.
The amount of base salary and variable compensation payments
to be deferred by a Participant ("Deferral") will be credited
with earnings and investment gains and losses by assuming that
the Deferral was invested in one or more investment alternatives
selected by such Participant in accordance with the terms of the
Plan (Deferrals will not be invested in the investment
alternatives available under the Plan). Investment alternatives
include Company common stock funds, mutual funds and a fixed
income fund. Deferrals that are deemed invested under the terms
of the Plan in the Company common stock funds will also be
credited with an amount equal to each dividend declared and paid
on shares of Company common stock which amounts shall be deemed
reinvested in Company common stock, at a 5% discount from market
price, as and to the extent permitted under the Plan. Deferrals
will be denominated and paid in United States dollars.
The Deferred Compensation Obligations are not subject to
redemption, in whole or in part by Participants except upon
specified payment dates, by the Company at its option or through
operation of a mandatory or optional sinking fund or analogous
provision. The Company reserves the right to amend or terminate
the Plan at any time, except that no such amendment or
termination shall adversely affect the right of a Participant to
the balance of his or her Deferrals as of the date of such
amendment or termination.
Generally, a Participant's right or the right of any other
person to receive payment of the Deferred Compensation
Obligations cannot be assigned, alienated, sold, garnished,
transferred, pledged, or encumbered except by a written
designation of a beneficiary under the Plan. However, if a
Participant is terminated "for cause" in accordance with the
terms of the Plan, any earnings and investment gains credited to
his or her deferrals will be forfeited.
The Deferred Compensation Obligations are not convertible
into another security of the Company. The Deferred Compensation
Obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the
Company. No trustee has been appointed having the authority to
take action with respect to the Deferred Compensation
Obligations, and each Participant will be responsible for acting
independently with respect to, among other things, the giving of
notices, responding to any request for consent waivers or
amendments pertaining to the Deferred Compensation Obligations,
enforcing covenants and taking action upon a default.
The Company has established a "rabbi trust" to assist the
Company with its obligation to make payments of Deferrals.
Participants in the Plan have no rights to any assets held by the
rabbi trust, except as general creditors of the Company. Assets
of the rabbi trust will at all times be subject to the claims of
the Company's general creditors.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721 through 726 of the New York Business
Corporation Law provide for indemnification of directors and
officers. If a director or officer is successful on the merits
or otherwise in a legal proceeding, he must be indemnified to the
extent he was successful. Further, indemnification is permitted
in both third-party and derivative suits if he acted in good
faith and for a purpose he reasonably believed was in the best
interests of the Company, and if, in the case of a criminal
proceeding, he had no reasonable cause to believe his conduct was
unlawful.
Indemnification under this provision applies to judgments,
fines, amounts paid in settlement and reasonable expenses, in the
case of third party actions, and amounts paid in settlement and
reasonable expenses, in the case of derivative actions. In a
derivative action, however, a director or officer may not be
indemnified for amounts paid to settle such a suit or for any
claim, issue or matter as to which such person shall have been
adjudged liable to the Company absent a court determination that
the person is fairly and reasonably entitled to indemnity.
Notwithstanding the failure of the Company to provide
indemnification and despite any contrary resolution of the board
or shareholders, indemnification shall be awarded by the proper
court pursuant to Section 724 of the New York Business
Corporation Law.
Under New York law, expenses may be advanced upon receipt of
any undertaking by or on behalf of the director or officer to
repay the amounts in the event the recipient is ultimately found
not to be entitled to indemnification. The advance is
conditioned only upon receipt of the undertaking and not upon a
finding that the officer or director has met the applicable
indemnity standards.
Article V of the Company's By-Laws requires it to indemnify
each of its past, present and future directors, officers and
employees to the fullest extent permitted by law for any and all
costs and expenses resulting from or relating to any suit or
claim arising out of service to the Company or to other
organizations at the Company's request.
The Company has entered into indemnity agreements with each
of its directors and officers which require the Company, among
other things, to indemnify each director or officer for all costs
and expenses of suits and claims (to the fullest extent permitted
by law), and to advance to each director or officer the costs and
expenses of defending any suit or claim if such director or
officer undertakes to pay back such advances to the extent
required by law. These provisions do not apply to any suit or
claim voluntarily commenced by the director or officer against
the Company, unless the institution of such proceeding was
approved by a majority of the Board of Directors or the director
or officer is successful on the merits in such proceeding.
Section 402 of the New York Business Corporation Law permits
the Company to include in its certificate of incorporation
provisions eliminating the personal liability of directors to the
Company or its shareholder for any breach of duty in such
capacity unless a judgment or final adjudication adverse to the
director that his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that he
personally gained a financial profit or other advantage to which
he was not legally entitled or his acts violated Section 719 of
the New York Business Corporation Law. The certificate of
incorporation of the Company contains a provision eliminating the
personal liability of its directors to the Company and its
shareholder except to the extent such liability may not be
eliminated by law.
The Company carries directors' and officers' insurance which
covers its directors and officers against certain liabilities
they may incur when acting in their capacity as directors or
officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4 The Union Carbide Corporation Compensation Deferral Plan
5 Opinion of Kelley Drye & Warren, Counsel to the Company
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors
23.2 Consent of Price Waterhouse LLP, Independent Accountants
23.3 Consent of Counsel (included in opinion filed as Exhibit 5)
24 Powers of Attorney of Directors and Certain Officers
of the Company (included on the signature pages hereof)
ITEM 9. UNDERTAKINGS.
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act; (ii) to reflect in the prospectus
any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and the price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and (iii) to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided however that subparagraphs (i)
and (ii) do not apply if the information required to be included
in a post-effective amendment by those subparagraphs is contained
in periodic reports filed by the Company pursuant to Section 13
or 15(d) of the 1934 Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for the purposes of determining any liability
under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or 15(d) of the 1934 Act (and
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act), that it
is incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions described in Item 6 of this Registration Statement, or
otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, Union Carbide Corporation certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Danbury,
State of Connecticut on the 24th day of April, 1996.
UNION CARBIDE CORPORATION
By: /s/JOHN K. WULFF
John K. Wulff
Vice President, Chief Financial
Officer and Controller (Principal
Financial and Accounting Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Union
Carbide Corporation, hereby severally constitute and appoint
William H. Joyce and John K. Wulff, and each of them singly, our
true and lawful attorney, with full power to them, to sign for us
in our names in the capacities indicated below, this Registration
Statement and any and all post-effective amendments to this
Registration Statement, and generally to do all things in our
name and on our behalf in such capacities to enable Union Carbide
Corporation to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/W.H. JOYCE President, Chairman
William H. Joyce of the Board, Chief April 24, 1996
Executive Officer
and Director (Principal
Executive Officer)
/s/JOHN K. WULFF Vice-President,
John K. Wulff Chief Financial Officer April 24, 1996
and Controller (Principal
Financial and Accounting
Officer)
/s/JOHN J. CREEDON Director April 24, 1996
John J. Creeddon
/s/JOSEPH E. GEOGHAN Director April 24, 1996
Joseph E. Geoghan
/s/VERNON E. JORDAN, JR. Director April 24, 1996
Vernon E. Jordan, Jr.
/s/R.D. KENNEDY Director April 24, 1996
Robert D. Kennedy
/s/RONALD L. KUEHN, JR. Director April 24, 1996
Ronald L. Kuehn, Jr.
/s/ROZANNE L. RIDGWAY Director April 24, 1996
Rozanne L. Ridgway
/s/W.S. SNEATH Director April 24, 1996
William S. Sneath
EXHIBIT INDEX
Exhibit
4 The Union Carbide Corporation Compensation Deferral Plan.
5 Opinion of Kelley Drye & Warren, Counsel to the
Corporation.
23.1 Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 Consent of Price Waterhouse LLP, independent accountants.
23.3 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney (included on the signature pages hereof).
EXHIBIT 4
UNION CARBIDE COMPENSATION DEFERRAL PROGRAM
(As Amended and Restated October 1, 1995)
UNION CARBIDE COMPENSATION DEFERRAL PROGRAM
ARTICLE I
PURPOSE
1.1 The purpose of this Program is to (i) allow
Eligible Employees under the Variable Compensation Plans to defer
a portion or all of their Variable Compensation, (ii) allow
Eligible Employees to defer a portion of their base salary, (iii)
allow Eligible Employees to defer a portion or all of their lump
sum payments otherwise payable from the SRIP and/or Equalization
Plan, and (iv) restore to Eligible Employees a portion of their
matching contribution under the Savings Program which is limited
by restrictions imposed under Section 401(a)(17) of the Code.
1.2 This Program shall be effective for amounts
payable on or after January 1, 1995.
ARTICLE II
DEFINITIONS
2.1 "Administrative Committee" means the
Administrative Committee of the Retirement Program Plan for
Employees of Union Carbide Corporation and its Participating
Subsidiary Companies and certain Non-Qualified Employee Benefit
Plans of Union Carbide Corporation.
2.2 "Aggregate Compensation" means the sum of a
Participant's Compensation and Deferred Compensation.
2.3 "Annual Plan" means the 1994 Union Carbide
Variable Compensation Plan or such successor plan thereto
maintained by the Corporation.
2.4 "Applicable Equity Investment Fund Rate" means
the difference between the value of each of the applicable
investment funds elected by a Participant under Section 8.2 of
this Program: Fidelity Asset Manager, Fidelity Equity Income
Fund, Fidelity Growth Company Fund, Fidelity Contrafund and
Fidelity Overseas Fund, determined on a fund by fund basis, as of
(i) the later of the Date of Deferral or the effective date of a
Participant's election under Section 8.2(c), and (ii) the
relevant valuation date for determining the amount of earnings of
such investment fund in accordance with Section VIII. Such value
shall include any hypothetical dividends and hypothetical capital
gains distributions paid on such investment fund during the
period for which the Applicable Equity Investment Fund Rate is
being determined, as if such hypothetical dividends or
hypothetical capital gains distributions are reinvested when
payable in additional shares of such fund. The value of a
respective investment fund for purposes of this Section 2.4,
shall mean the net asset value of such investment fund as
reported by such fund.
2.5 "Beneficiary" means the person, persons or
estate entitled (as determined under Article VII) to receive
payment under this Program following a Participant's death.
2.6 "Change in Control" means the occurrence of any
of the following:
(1) A change in control of the Corporation would be
required to be reported in response to item 1(a) of the current
Report of Form 8-K, as in effect on the date hereof, pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not the Corporation is
then subject to such reporting requirement;
(2) there shall be consummated (A) any
consolidation or merger of the Corporation in which the
Corporation is not the continuing or surviving corporation or
pursuant to which shares of the Corporation's common stock would
be converted into cash, securities or other property, other than
a merger of the Corporation in which the holders of the
Corporation's common stock immediately prior to the merger have
the same proportion and ownership of common stock of the
surviving corporation immediately after the merger, or (B) any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of
the assets of the Corporation, provided, that the divestiture of
less than substantially all of the assets of the Corporation in
one transaction or a series of related transactions, whether
effected by sale, lease, exchange, spin-off, sale of the stock or
merger of a subsidiary or otherwise, shall not constitute a
Change in Control;
(3) any "person" or "group" within the meaning of
Sections 13(d) and 14(d) (2) of the Exchange Act (A) becomes the
"beneficial owner" as defined in Rule 13d-3 under the Exchange
Act of more than 20% of the then outstanding voting securities of
the Corporation, otherwise than through a transaction or
transactions arranged by, or consummated with the prior approval
of, the board of directors of the Corporation, or (B) acquires by
proxy or otherwise the right to vote for the election of
directors, for any merger or consolidation of the Corporation or
for any other matter or question more than 20% of the then
outstanding voting securities of the Corporation, otherwise than
through an arrangement or arrangements consummated with the prior
approval of the board of directors of the Corporation;
(4) during any period of twenty-four consecutive
months, Present Directors and/or New Directors cease for any
reason to constitute a majority of the Board of Directors of the
Corporation. For purposes of this Agreement, "Present Directors"
shall mean individuals who at the beginning of such consecutive
twenty-four month period were members of the Board and "New
Directors" shall mean any director whose election by the Board of
Directors of the Corporation or whose nomination for election by
the Corporation's stockholders was approved by a vote of at least
two-thirds of the Directors then still in office who were Present
Directors or New Directors.
Notwithstanding the foregoing, a Change of Control
shall not be deemed to occur pursuant to subparagraph (2), above,
solely because twenty percent (20%) or more of the combined
voting power of the Corporation's then outstanding securities is
acquired by one or more employee benefit plans maintained by the
Corporation.
2.7 "Code" means the Internal Revenue Code of 1986,
as amended from time to time.
2.8 "Compensation Committee" means the Compensation
and Management Development Committee of the Board of Directors of
the Corporation.
2.9 "Compensation" means, solely for purposes of
this Program, a Participant's taxable base salary, taxable
Variable Compensation awarded under a Variable Compensation Plan
and any compensation that is deferred by the Participant to any
other plan maintained by the Corporation which satisfies the
requirements of Code Sections 125 or 401(k).
2.10 "Corporation" means Union Carbide Corporation,
a New York Corporation, any predecessor thereof and any successor
thereof by merger, consolidation or otherwise.
2.11 "Date of Deferral" means (i) with respect to
Variable Compensation, the date on which the Corporation issues
checks for Variable Compensation awards for a given Service Year,
(ii) with respect to base salary deferral, the date on which the
relevant salary would be paid, (iii) with respect to matching
contributions made by the Corporation pursuant to Section 5.4 of
this Program, December 31st and (iv) with respect to amounts
which would otherwise have been paid from the SRIP or
Equalization Plan, the date on which lump sum amounts would have
otherwise been distributed in accordance with the terms of such
Plan.
2.12 "Deferred Compensation" means the amount of
Compensation deferred by a Participant under this Program
pursuant to Section 5.3 of this Program.
2.13 "Disability" means a Participant's total
physical or mental inability to perform any work for compensation
or profit in any occupation for which the Participant is
reasonably qualified by reason of training, education or ability,
and which inability is adjudged to be permanent, as determined by
the Administrative Committee or its designee.
2.14 "Eligible Employee" means (i) an individual
who, at the Date of Deferral, is employed in the United States by
the Corporation, or one of its subsidiaries that is participating
in this Program, and is a participant in the Annual Plan or the
Mid-Management Plan or is otherwise approved for participation in
this Program by the Compensation Committee.
2.15 "Equalization Plan" means the Equalization
Benefit Plan for Participants in the Retirement Program Plan for
Employees of Union Carbide Corporation and its Participating
Subsidiary Companies.
2.16 "Exchange Act" means the Securities Exchange
Act of 1934 as amended.
2.17 "Fixed Income Rate" means the rate of interest
for the Fixed Income Fund under the Savings Program, in effect
from time to time.
2.18 "Mid-Management Plan" means the 1994 Union
Carbide Mid-Management Variable Compensation Plan.
2.19 "Participant" means an Eligible Employee who
(i) elects in advance to defer a portion of his or her base
salary in accordance with Section 5.3 of this Program, (ii)
elects in advance to defer a portion or all of his or her
variable compensation for a given Service Year under one of the
Variable Compensation Plans in accordance with Article V.2 of
this Program, if one were to be paid to such Participant for that
year, and who is in fact subsequently awarded Variable
Compensation for that year, payable during the following calendar
year on the Date of Deferral, (iii) elects in advance under this
Program to defer his or her lump sum distribution from the SRIP
or Equalization Plan or (iv) is a participant in the Savings
Program for a given calendar year and receives compensation (as
defined in Section 1.12 of the Savings Program) for such calendar
year in an amount which is in excess of the compensation which
may be considered under Section 1.12 of the Savings Program
because of the limitations imposed by Code Section 401(a)(17).
2.20 "Program" means this Union Carbide
Compensation Deferral Program.
2.21 "Retirement" means (a) for participants in the
Retirement Program, the date on which a Participant attains age
65 or is eligible for a non-actuarially reduced pension benefit
under the Retirement Program and actually retires from employment
with the Corporation and (b) for those employees who are not
participants in the Retirement Program, the date on which a
Participant attains age 65, attains age 62 with at least 10 years
of service or whose age and service totals at least 85 and
actually retires from employment with the Corporation.
2.22 "Retirement Program" means The Retirement
Program Plan for Employees of Union Carbide Corporation and its
Participating Subsidiary Companies.
2.23 "Savings Program" means The Savings Program
for Employees of Union Carbide Corporation and Participating
Subsidiary Companies.
2.24 "Service Year" means one of the calendar years
on and after 1994, as to which an election may be made in
accordance with Article V, and in respect of which Variable
Compensation may be paid during the following calendar year on
the Date of Deferral.
2.25 "SRIP" means the Union Carbide Corporation
Supplemental Retirement Income Plan.
2.26 "UCC Discounted Stock Value Rate" means the
UCC Stock Value Rate except that the value of the Corporation's
common stock as of the Date of Deferral pursuant to which
earnings shall accrue at the UCC Stock Value Rate, shall be
determined as if purchased as a ten percent (10%) discount.
2.27 "UCC Stock Value Rate" means the difference
between the value of the Corporation's common stock as of the
later of (i) the Date of Deferral or the effective date of a
Participant's election under Section 8.2 pursuant to which
earnings shall accrue at the UCC Stock Value Rate and (ii) the
relevant date of determination of the amount of earnings in
accordance with Section 8.2(c) of this Program. Such value shall
include the value of any hypothetical dividends paid on the
common stock during the period for which the UCC Stock Value Rate
is being determined, as if such hypothetical dividends were
reinvested when payable (at a five percent (5%) discount) in
additional shares of the Corporation's common stock as determined
on the later of the Date of Deferral or the effective date of a
Participant's election under Section 8.2(c) pursuant to which
earnings shall accrue at the UCC Stock Value Rate. The value of
the Corporation's common stock for purposes of this Section 2.27,
shall mean the closing price of the stock on the New York Stock
Exchange - Composite Transaction on the relevant date of
determination.
2.28 "Unforeseen Emergency" means an event beyond
the control of the Participant that would result in severe
financial hardship to the Participant if early withdrawal of the
Participant's Variable Compensation deferral were not permitted.
Whether a Participant has an Unforeseen Emergency shall be
determined by the Administrative Committee, except that if a
Participant is subject to Section 16 of the Exchange Act, the
Compensation Committee shall determine if such Participant has an
Unforeseen Emergency.
2.29 "Variable Compensation" means any amounts
awarded in accordance with one of the Variable Compensation
Plans.
2.30 "Variable Compensation Plans" means,
collectively, the Annual Plan, the Mid-Management Plan and any
other variable compensation plan authorized by the Compensation
Committee to participate in this Program.
ARTICLE III
ADMINISTRATION
3.1 Except as otherwise indicated, the Compensation
Committee shall supervise the administration and interpretation
of this Program, may establish administrative regulations to
further the purpose of this Program and shall take any other
action necessary to the proper operation of this Program. All
decisions and acts of the Compensation Committee shall be final
and binding upon all Participants, their Beneficiaries and all
other persons.
ARTICLE IV
ELIGIBILITY
4.1 To be eligible to participate in this Program for
a given year, a person must have become an Eligible Employee not
later than the day on or before the date which an Eligible
Employee must make the election provided for in Article V of this
Program for that year and either be employed by the Corporation
on the Date of Deferral for that year, or be eligible to receive
a lump sum payment under the Equalization Plan or SRIP.
ARTICLE V
DEFERRALS
5.1 During each of the years this Program is in
effect, Eligible Employees shall be informed of the opportunity
to participate in this Program. An Eligible Employee choosing to
participate in this Program must make an election to do so on or
before the date designated by the Administrative Committee and
otherwise in accordance with such procedures as may be
established by the Administrative Committee.
5.2 (a) While an election to defer Variable
Compensation under one of the Variable Compensation Plans shall
be irrevocable when made until the next scheduled annual election
period, participation in this Program with respect to Variable
Compensation shall become effective only on the Date of Deferral
and only if, on such date, the Eligible Employee receives an
award under one of the Variable Compensation Plans (or would have
received an award but for an election to defer under this
Program).
Variable Compensation awards, if any, for services
performed in calendar years 1994 and 1995, must be deferred
during the 1994 annual election period. Variable Compensation
awards, if any, for services performed in calendar years 1996 and
beyond, must be deferred during the annual election period
immediately preceding the calendar year in which such services
will be performed. Notwithstanding the foregoing, an Eligible
Employee who becomes eligible to participate in this Program
after January 1, 1995 may elect to defer a Variable Compensation
award during the calendar year in which services will be
performed; provided, however, he or she makes an election to
defer within 31 days after becoming eligible to participate in
this Program.
(b) An Eligible Employee must elect to defer his or
her base salary for services performed in calendar year 1995
during the 1994 annual election period. Participation in this
Program shall become effective only on the Date of Deferral and
only if, on such date, the Eligible Employee remains employed
with the Corporation. Base salary for services performed in
calendar years 1996, and beyond, must be deferred during the
annual election period immediately preceding the calendar year in
which such services will be performed. A Participant may suspend
his or her election to defer his or her base salary (but may not
otherwise reduce or change an election mid-year) at any time;
provided, however, that such Eligible Employee may not resume
deferrals of base salary until the following calendar year.
Notwithstanding the foregoing, an Eligible Employee who becomes
eligible to participate in this Program after January 1, 1995,
may elect to defer a portion of his or her base salary during the
calendar year in which services will be performed; provided he or
she makes an election to defer within 31 days after becoming
eligible to participate in this Program.
(c) A Participant must elect to defer lump sum
payments that he or she would otherwise receive in accordance
with the terms of the SRIP or Equalization Plan during the annual
election period immediately preceding the calendar year in which
such payments would otherwise be received.
5.3 (a) On or before the date designated by the
Administrative Committee and otherwise in accordance with such
procedures as may be established, a Participant may elect
voluntarily to defer (i) up to 100% of the Participant's award
under the Variable Compensation Plans (in 10% increments),
(ii) up to 25% of his or her base salary (in 5% increments)
and/or (iii) up to 100% of his or her lump sum payment from the
SRIP or Equalization Plan. Effective with elections made with
respect to payments that would otherwise be received in 1996 or
later, (i) only up to 85% of Variable Compensation may be
deferred, and the 10% increments will apply only for the first
80% of such deferrals, and (ii) base salary may be deferred in
increments of 1% up to the first 5% and 5% increments thereafter.
(b) A Participant must elect, during any applicable
calendar year, to defer in the aggregate a minimum of $2,000 of
his base salary, Variable Compensation or lump sum payment from
the SRIP or Equalization Plan in order to participate in this
Program. Notwithstanding any provision in this Program to the
contrary, if a Participant fails to defer at least $2,000 of his
base salary, Variable Compensation or lump sum payment from the
SRIP or Equalization Plan in any calendar year, the
Administrative Committee may, in its sole discretion, require
such Participant to irrevocably elect to defer a minimum of
$2,000 in the calendar year immediately following thereafter in
order to participate in this Program.
5.4 (a) The Corporation shall credit a Participant
with an amount equal to 75% of a Participant's deemed annual
contribution as determined under subsection (b) of this Section
5.4.
(b) A Participant's deemed annual contribution shall
equal A multiplied by B, where A and B are as follows:
A equals that portion of a Participant's
compensation in excess of the limits contained in Code Section
401(a)(17) (as defined in Section 1.12 of the Savings Program
without regard to Code Section 401(a)(17), and without regard to
any deferrals under this Program), up to $235,840 which is
deferred under this Program. Such $235,840 shall be adjusted at
the same time and in the same manner as the limitation described
in Code Section 415(d)(3); and
B equals the percentage of such
Participant's compensation (as defined under Section 1.12 of the
Savings Program) which has been contributed to the Savings
Program for the applicable calendar year as a Basic Deduction
pursuant to Section 2.7.2 of the Savings Program.
(c) The Corporation shall credit each Participant with
the amount determined pursuant to subsection (a) of this Section
5.4, in arrears, on each Deferral Date; provided that such
Participant remains eligible to participate in this Program and
is employed by the Corporation on the Deferral Date.
Notwithstanding the foregoing, the Corporation shall not credit a
Participant with the amount determined pursuant to subsection (a)
of this Section 5.4 (as of the Participant's termination of
employment) if the Participant terminates employment with the
Corporation during a calendar year for any reason, except if the
Participant's employment is terminated by reason of death,
Disability, Retirement or termination by the Corporation other
than for cause.
ARTICLE VI
PAYMENTS TO PARTICIPANTS AND BENEFICIARIES
6.1 Time of Payment. (a) Subject to subsections
(b), (c) and (d) of this Section 6.1, a Participant shall begin
to receive payment of his or her deferrals, and any earnings
accruals credited under Article VIII, during the January next
following his or her date of termination of employment.
(b) (i) Notwithstanding any provision in this Program
to the contrary, a Participant may elect to commence receipt of
payments of any amounts deferred upon a specific future payment
date which is at least five years after the Date of Deferral or
such shorter schedule as the Compensation Committee may
determine. Such payments must begin no later than the calendar
year in which the Participant attains age 70.5. A Participant
making such an election shall receive his or her lump sum payment
in the January next following his or her future payment date or,
if applicable, such Participant shall receive installment
payments in accordance with Section 6.2.
(ii) With respect to a Participant who has attained
age 55 at the time of the election of his or her deferral, the
five year period described in subsection (i) shall instead be one
year with respect to deferrals of base salary or Variable
Compensation.
(iii) A Participant is limited to two future fixed
year payments. The amounts paid out in such fixed year payments
(if prior to termination of employment) may not exceed the sum of
a Participant's deferral of base salary or Variable Compensation
under this Program. Effective for elections made in November,
1995 or later, up to four such fixed payment dates may be
elected.
(c) A Participant who has not yet terminated
employment, but has an Unforeseen Emergency, may receive any or
all of his or her Variable Compensation and base salary
deferrals, excluding any earning accruals credited to him or her
pursuant to Article VIII of this Program; provided that the
Participant may not receive an amount greater than the amount
necessary to meet the Unforeseen Emergency and any amounts
necessary to pay federal, state and local income taxes or
penalties reasonably anticipated to result from a withdrawal
under this Section 6.1. Earning accruals will remain in the
Program and continue to accrue earnings under Article VIII until
the payment date or dates described in Article VI.
(d) Notwithstanding any provision in this Program
to the contrary, a Participant may, on the applicable Date of
Deferral or at any time thereafter prior to a Change in Control,
elect to receive payment of his or her entire account balance
under this Program at such time as the Board of Directors of the
Corporation determines that a Change in Control has occurred.
Such payment shall be made in a lump sum within 45 days after the
Change in Control.
6.2 Form of Payments. (a) A Participant may
elect to receive payments under this Program in annual or
quarterly installments. Such installments must commence as
described in Section 6.1, and must be completed by the calendar
year in which the Participant attains age 85.
(b) A Participant may elect to receive installment
payments either (i) annually during each January or
(ii) quarterly, commencing in the January that payment was
otherwise due in accordance with Section 6.1. If a Participant
does not elect the form of his or her installment payments, such
installment payments shall be made annually during each January.
(c) If a Participant does not elect the form of his or
her payments, such payments shall be made in a lump sum payment.
(d) A Participant may change the form of payment
previously elected only one time and subject to the following
restrictions:
(i) such election is made in the calendar year that the
Participant terminates employment, to be effective no earlier
than the following calendar year;
(ii) the election is subject to the consent of the Administrative
Committee.
(e) 1. If a Participant dies at any time prior to
receiving any portion of his or her account balance under this
Program, payment shall be made to the Participant's Beneficiary
as follows:
(A) If the Participant's Beneficiary is his or her
surviving spouse, such Participant's entire account balance under
this Program shall be paid as follows:
(i) ten annual installments or a shorter schedule, if so elected
by the surviving spouse, or
(ii) a lump sum payment payable on or about the January 1st
following the Participant's death.
(B) If the Participant's Beneficiary is someone other
than his or her surviving spouse, such Participant's entire
account balance under this Program shall be paid in a lump sum
payment as soon as practical following the Participant's death.
2. If a Participant dies at any time after payment of
his or her account balance under this Program has begun, such
Participant's Beneficiary shall continue to receive payment of
the Participant's account in the same manner as the Participant
elected, or such shorter payment schedule as elected by the
Beneficiary.
(f) If any lump sum distribution otherwise payable under
this Program would be disallowed in any part as a deduction to
the Corporation in accordance with Section 162(m) (or a successor
Section) of the Internal Revenue Code, the Compensation Committee
may determine to distribute the amount of such benefit in
installments such that the Participant or Beneficiary shall
receive the maximum amount permissible in each installment and
still preserve the Corporation's full tax deduction.
6.3 Amount of Payment (a) If a Participant is
terminated by the Corporation for cause, he or she shall receive
the lesser of (A) any amounts he or she actually deferred under
Article V, less any previous payments made or (B) his or her
account balance under this Program. Such payment shall be made
in a lump sum payment as soon as administratively practical
following the Participant's termination of employment; provided,
however, that such Participant will forfeit all Earnings Accruals
credited to him or her pursuant to Article VIII.
(b) If a Participant voluntarily separates from
employment with the Corporation or retires under the Retirement
Program with an actuarially reduced pension, he or she shall
receive, (i) with respect to deferral elections made before 1995,
a lump sum payment equal to the lesser of (A) any amounts he or
she actually deferred under this Program, plus credits to his or
her account at the Fixed Income Rate from his or her Date of
Deferral less any previous payments made or (B) his or her
account balance under this Program, and (ii) with respect to
deferral elections made in 1995 and later, his or her account
balance. Such payments will be made as soon as administratively
practical after the Participant's termination of employment.
Notwithstanding the foregoing, a Participant who retires under
the Retirement Program with an actuarially reduced pension may
elect to receive his or her payments in any form described in
Section 6.2.
(c) If a Participant terminates employment on account
of Retirement, Disability, death, or through action of the
Corporation taken without cause, such Participant (or
Beneficiary) shall be entitled to receive the full amount of his
or her account balance.
6.4 Payment in U.S. Dollars. All payments under
this Program shall be made in U.S. dollars.
6.5 Reduction of Payments. All payments under this
Program shall be reduced by any and all tax payments that the
Corporation is required to withhold pursuant to applicable law.
ARTICLE VII
BENEFICIARIES
7.1 A Participant may at any time, and from time to
time, prior to his or her death designate one or more
Beneficiaries to receive any payments to be made following the
Participant's death. If no such designation is on file with the
Corporation at the time of a Participant's death, the
Participant's Beneficiary shall be the beneficiary or
beneficiaries named in the beneficiary designation most recently
filed by the Participant under the Corporation's Savings Program.
If a Participant has not effectively designated a beneficiary
under the Savings Program, or if no designated beneficiary has
survived the Participant, the Participant's Beneficiary shall be
the Participant's surviving spouse, or, if no spouse has survived
the Participant, the estate of the deceased Participant. If an
individual Beneficiary cannot be located for a period of one year
following the Participant's death, despite mail notification to
the Beneficiary's last known address, and if the Beneficiary has
not made a written claim for benefits within such period to the
Administrative Committee, the Beneficiary shall be treated as
having predeceased the Participant. The Administrative Committee
may require such proof of death and such evidence of the right of
any person to receive all or part of a deceased Participant
account balance, as the Administrative Committee may consider
appropriate. The Administrative Committee may rely upon any
direction by the legal representatives of the estate of a
deceased Participant, without liability to any other person.
ARTICLE VIII
EARNINGS ACCRUALS
8.1 Each Participant's account balance under this
Program shall be credited with earnings from the Date of Deferral
through the date such deferral is paid out or withdrawn pursuant
to Article VI. Earnings under this Section 8.1 shall accrue at
the rate elected in accordance with Section 8.2.
8.2 (a) Earnings accruing in accordance with Section
8.1 shall accrue at (i) the Fixed Income Rate, (ii) the UCC Stock
Value Rate, (iii) the UCC Discounted Stock Value Rate, (iv) the
Applicable Equity Investment Fund Rate or (v) a combination of
the four rates. An election to use the UCC Discounted Stock
Value Rate shall be effective for not less than one (1) year.
Amounts deferred pursuant to Section 5.2(c) cannot accrue at the
UCC Discounted Stock Rate. Notwithstanding the foregoing, if a
Participant has elected under Section 6.1 to receive payment of
his or her account balance upon termination of employment, and
such Participant's employment is terminated by the Corporation
without cause, such Participant may then receive a distribution
based on the UCC Discounted Stock Value Rate even if one (1) year
has not yet passed since the relevant Date of Deferral.
(b) Subject to subparagraph (c), a Participant shall
designate at the time of his or her election to defer any amounts
under this Program which accrual rate or rates shall apply to his
or her deferrals (deferrals of matching contributions made
pursuant to Section 5.4 shall be allocated to the same accrual
rates as those selected for base salary deferrals for the same
year); provided such elections must be in whole percentage
points. Such elections shall be effective as of the Date of
Deferral through the date such deferral is paid out or withdrawn
pursuant to Article VI.
(c) A Participant may, one time each calendar month,
elect to change the accrual rate under this Section 8.2 with
respect to any or all previous deferrals under this Program;
provided, however, that Participants may elect to utilize the UCC
Discounted Stock Value Rate with respect to future deferrals
only, and not for the reallocation of any prior deferrals.
Participants may utilize the UCC Stock Value Rate only for
reallocation of previous deferrals.
ARTICLE IX
GENERAL PROVISIONS
9.1 Prohibition of Assignment of Transfer. Any
assignment, hypothecation, pledge or transfer of a Participant's
or Beneficiary's right to receive payments under this Program
shall be null and void and shall be disregarded, except to the
extent required by law.
9.2 Program Not to Be Funded. The Corporation is
not required, for the purpose of funding this Program, to
segregate any monies from its general funds, create any trusts,
or make any special deposits, and the right of a Participant or
Beneficiary to receive a payment under this Program shall be no
greater than the right of an unsecured general creditor of the
Corporation.
9.3 Effect of Participation. Neither selection as
a Participant, nor an election to participate or participation in
this Program, shall entitle a Participant to receive awards under
the Variable Compensation Plans, SRIP or Equalization Plan or a
matching contribution under the Savings Program, or affect the
Corporation's right to discharge a Participant.
9.4 Communications To Be in Writing. All
elections, requests and communications to the Corporation or its
designated agent from Participants and Beneficiaries, and all
communications to such persons from the Corporation, shall be in
writing, and in such form and manner, and within such time, as
the Corporation shall determine. In lieu of the foregoing, the
Corporation may install a telephonic voice response system for
such elections, requests and communications.
9.5 Absence of Liability. No officer, director or
employee of the Corporation shall be personally liable for any
acts or omission to act under this Program or, except in
circumstances involving bad faith, for such officer's, director's
or employee's own act or omission to act.
9.6 Titles for Reference Only. The titles given
herein to sections and subsections are for reference only and are
not to be used to interpret the provisions of this Program.
9.7 New York Law To Govern. All questions
pertaining to the construction, regulation, validity and effect
of the provisions of this Program shall be determined in
accordance with New York law.
9.8 Amendment. The Compensation Committee may
amend this Program at any time, but no amendment may be adopted
which alters the payments due Participants or Beneficiaries, as
of the date of the amendment, or the times at which payments are
due, without the consent of each Participant affected by the
amendment and of each Beneficiary (of a then deceased
Participant) affected by the amendment. In addition, any
amendment which does not increase the Corporation's annual cost
of any past or future benefits under this Program by more than
$500,000, change the eligibility requirements, or impact the
ability of officers to utilize the UCC Discounted Stock Value
Rate or the UCC Stock Value Rate, may be authorized by the
Administrative Committee.
9.9 Program Termination. The Compensation
Committee may terminate this Program for any reason and at any
time. In the event of such termination, the accounts of each
Participant or Beneficiary under this Program shall become
immediately payable in accordance with Section 6.1; provided that
the Compensation Committee, in its sole discretion, upon Program
termination or at any time thereafter, may decide to make lump
sum payments in lieu of annual payments.
UNION CARBIDE CORPORATION
By: /s/M. KESSINGER
M. KESSINGER
Exhibit 5
April 24, 1996
Board of Directors
Union Carbide Corporation
39 Old Ridgebury Road
Danbury, CT 06817-0001
Re: Registration Statement on Form S-8 for Compensation
Deferral Program
Dear Sirs:
Please refer to the Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of
1933, as amended, to be filed with the Securities and Exchange
Commission by Union Carbide Corporation (the "Corporation")
relating to $25,000,000 of the Corporation's deferred
compensation obligations (the "Deferred Compensation
Obligations") which are issuable under The Union Carbide
Corporation Compensation Deferral Program (the "Plan").
We have examined and are familiar with originals or
copies, certified or otherwise identified to our satisfaction, of
such documents, corporate records, certificates of public
officials and officers of the Corporation and such other
instruments as we have deemed necessary or appropriate as a basis
for the opinions expressed below.
Based upon the foregoing, we are of the opinion that:
1. The Corporation has been duly organized and is
validly existing under the laws of the State of New York.
2. The Plan has been duly adopted by the Board of
Directors of the Corporation.
3. When issued, the Deferred Compensation
Obligations of the Corporation will be valid and binding
obligations of the Corporation, enforceable in accordance their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability
relating to or affecting enforcement of creditors' rights or by
general equity principles.
Board of Directors -2- April 24, 1996
We hereby consent to the use of this opinion as
Exhibit 5 to the Registration Statement.
Very truly yours,
KELLEY DRYE & WARREN
Exhibit 23.1
Consent of Independent Auditors
The Board of Directors of
Union Carbide Corporation
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Union Carbide Corporation of our reports
on Union Carbide Corporation included and incorporated by
reference in the Annual Report on Form 10-K of Union Carbide
Corporation for the year ended December 31, 1995. Our reports
refer to a change in accounting for postemployment benefits as
described in Note 1 to the consolidated financial statements.
KPMG PEAT MARWICK LLP
Stamford, Connecticut
April 24, 1996
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January
26, 1994 relating to the consolidated financial statements of UOP
and its subsidiaries appearing on page 17 of Union Carbide
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993, which is incorporated by reference in Union
Carbide Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995.
PRICE WATERHOUSE LLP
Chicago, Illinois
April 23, 1996
