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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
(Amendment No. 10)
Tender Offer Statement
(Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934)
CBI Industries, Inc.
(Name of Subject Company)
Praxair, Inc.
PX Acquisition Corp.
(Bidders)
Common Stock, $2.50 par value per share (and the associated Rights)
(Title of Class of Securities)
124800-10-3
(CUSIP Number of Class of Securities)
David H. Chaifetz
Vice President, General Counsel
and Secretary
Praxair, Inc.
39 Old Ridgebury Road
Danbury, Connecticut 06810-5113
(203) 837-2000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
Copies to:
Neil T. Anderson, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-4000
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This Amendment No. 10 amends and supplements the Tender Offer
Statement on Schedule 14D-1, as amended (the "Schedule 14D-1"), originally
filed by Praxair, Inc., a Delaware corporation ("Praxair"), and PX
Acquisition Corp., a Delaware corporation (the "Purchaser"), on November 3,
1995 relating to the tender offer disclosed therein to purchase all of the
outstanding Shares (including any associated Rights) upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated
November 3, 1995, and the related Letter of Transmittal. Capitalized terms
used and not defined herein shall have the meanings set forth in the
Schedule 14D-1.
Item 3. Past Contacts, Transactions or Negotiations with the Subject Company.
Item 3 is hereby amended and supplemented by adding thereto the
following:
On December 5, 1995, Praxair, Inc. and CBI Industries, Inc. entered
into the confidentiality agreement attached hereto as Exhibit (a)(19).
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby amended and supplemented by adding thereto the
following:
(a)(19) Confidentiality agreement between Praxair, Inc. and CBI
Industries, Inc. dated December 5, 1995.
(a)(20) Text of press release dated December 5, 1995.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: December 5, 1995
PRAXAIR, INC.
By: /s/ David H. Chaifetz
Name: David H. Chaifetz
Title: Vice President, General Counsel and
Secretary
PX ACQUISITION CORP.
By: /s/ David H. Chaifetz
Name: David H. Chaifetz
Title: President-Secretary
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INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit No. Description Pages
(a)(19) Confidentiality agreement between Praxair, Inc. and CBI
Industries, Inc. dated December 5, 1995.
(a)(20) Text of press release dated December 5, 1995.
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December 5, 1995
Praxair, Inc.
39 Old Ridgebury Road
Danbury, Connecticut 06810-5113
Gentlemen:
You have requested information concerning CBI Industries, Inc.
(the "Company") in connection with a possible transaction with the Company
or its shareholders. Except as required by law or judicial process, you
will treat confidentially any information furnished to you by or on behalf
of the Company (the "Evaluation Material"; provided, however, that the term
"Evaluation Material" does not include, and your confidentiality
obligations hereunder do not apply to, information which was or becomes
generally available on a non-confidential basis or information which is
available to you or becomes available to you from a third party not known
by you to be under any obligation of confidentiality). The Company is
prepared to provide you access to Evaluation Material on a comparable basis
to the access provided to other third parties.
You will not use the Evaluation Material in any way detrimental
to the Company or its shareholders; provided, however, that you may
disclose any Evaluation Material to your directors, officers, employees,
agents, advisors or financial institutions which are potential financing
sources who need to know such information for the purpose of evaluating the
transaction (it being understood that they shall be informed by you of the
confidential nature of such information and that by receiving such
information they are agreeing to be bound by this agreement).
In the event that you are requested in any proceeding to
disclose any Evaluation Material, you will give the Company prompt notice
of such request so that the Company may seek an appropriate protective
order. If in the absence of a protective order you are nonetheless
compelled by an order of a court of competent jurisdiction to disclose
Evaluation Material, you may disclose such information without liability
hereunder; provided, however, that you give the Company written notice of
the information to be disclosed as far in advance of its disclosure as is
practicable and, upon the Company's request and at the Company's expense,
use your reasonable efforts to obtain
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assurances that confidential treatment will be accorded to such
information.
You hereby acknowledge that you are aware of the restrictions
imposed by the United States securities laws on any person who has received
from an issuer material, non-public information from purchasing or selling
securities of such issuer or from communicating such information to any
other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities in reliance upon
such information.
Notwithstanding anything in this agreement to the contrary, you
and your affiliates shall be entitled to disclose certain Evaluation
Material, or summaries thereof, in filings made pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), in connection with
the current tender offer, dated November 3, 1995, by PX Acquisition Corp.
for securities of the Company as such offer may be amended from time to
time (the "Offer"), if you reasonably believe such disclosure is required
by the Exchange Act in connection with continuing or consummating the
Offer.
You agree that neither you nor any of your affiliates shall
acquire any securities of the Company pursuant to the Offer or otherwise at
any time prior to January 15, 1996, or such earlier time as the Company
enters into a definitive agreement with any party or parties, including
you, with respect to a transaction or transactions for the acquisition of
all or a majority of the Company's assets or securities.
You shall not make any disclosure concerning the fact that you
are having or have had discussions with the Company, and the Company will
not make disclosure of such discussions which identifies you or your
affiliates as parties thereto, except as the party making such disclosure
reasonably believes is required by law.
During the period you and your affiliates are precluded by this
agreement from acquiring any securities of the Company, you and your
affiliates will not, directly or indirectly, enter into any discussions,
negotiations, arrangements or understandings with any third party
with respect to such third party acquiring or seeking to acquire
any of the Company's assets or businesses or any
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securities issued by the Company or any rights or options to acquire such
ownership; provided, however, that the foregoing shall not be deemed
breached by you by reason of unsolicited contacts of you by a third party
with respect to any of the foregoing matters so long as your response
thereto is confined to advising such third party that you are not in a
position to discuss such matter; and provided, further, that the foregoing
shall not preclude you from having discussions with potential buyers and
others concerning the disposition by you of a portion or portions of
the Company's industrial gas business to the extent such disposition by you
may be reasonably necessary to resolve antitrust or similar issues, if any.
For two years from the date hereof you will not, except with
the prior consent of the Company, (i) initiate contact (except for those
contacts made in the ordinary course of business) with any executive or key
employee of the Company regarding its business, operations, prospects or
finances, and (ii) directly solicit for hire any person with whom you have
had contact during the course of your investigation relating to a possible
transaction with the Company or its shareholders and known to you to be
employed by the Company in an executive capacity.
Notwithstanding anything in this agreement to the contrary, the
Company agrees that if any Evaluation Material is provided to any other
party in connection with a possible transaction with the Company or its
shareholders on terms as regards the matters described in this agreement
which are less restrictive to such other party than those contained in this
agreement are to you, then this agreement will be deemed to have been
modified to provide you with the benefit of such less restrictive terms,
and the Company will provide you with an amended agreement reflecting such
terms.
Upon the Company's request you will promptly redeliver to the
Company or destroy all copies of the Evaluation Material and will destroy
all memoranda, notes and other writings prepared by you or your directors,
officers, employees, agents or affiliates based on the Evaluation Material.
You understand that neither the Company nor any of its representatives or
advisors makes any representation or warranty as to the accuracy or
completeness of any Evaluation Material which may be furnished to you. You
agree that neither the Company nor its representatives or advisors shall
have any liability to you or any of your representatives resulting from the
use of the Evaluation Material.
You and the Company agree that money damages would not be a
sufficient remedy for any breach of this agreement by you or the Company or
your or the Company's directors,
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officers, employees, agents or affiliates, and that in addition to all
other remedies the Company or you, as the case may be, shall be entitled to
specific performance and injunctive or other equitable relief as a remedy
for any such breach, and you and the Company further agree to waive and to
use your or the Company's reasonable efforts to cause your or the Company's
directors, officers, employees, agents or affiliates to waive, any
requirements for the securing or posting of any bond in connection with
such remedy.
This agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to its
conflict of laws principles or rules.
This agreement shall terminate upon the second anniversary
hereof.
If you are in agreement with the foregoing, please so indicate
by signing and returning one copy of this agreement which will constitute
an agreement between you and the Company with respect to the matters set
forth herein.
Very truly yours,
CBI INDUSTRIES, INC.
By: /s/ John E. Jones
Confirmed and Agreed to:
PRAXAIR, INC.
By: /s/ David H. Chaifetz
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CONTACTS:
Thomas M. Daly, Jr. Nigel D. Muir Investor Relations
Roy Winnick Praxair, Inc. Scott S. Cunningham
Kekst and Company 203-837-2240 Praxair, Inc.
212-593-2655 203-837-2073
PRAXAIR SIGNS CONFIDENTIALITY AGREEMENT WITH CBI
DANBURY, Conn., December 5, 1995 -- Praxair, Inc. (NYSE: PX) said in an
amendment to its Schedule 14D-1 filing being made today with the
Securities and Exchange Commission that it has signed a confidentiality
agreement with CBI Industries, Inc. (NYSE: CBI).
Among other things, the agreement grants Praxair the right to review
certain non-public information concerning CBI on a comparable basis to the
access to such information provided by CBI to other third parties.
The agreement also provides that neither Praxair nor any of its affiliates
shall acquire any securities of CBI pursuant to Praxair's tender offer or
otherwise at any time prior to January 15, 1996, except under certain
conditions.
H. William Lichtenberger, Praxair's chairman and chief executive officer,
said, "This agreement is a positive step along a road that we hope will end
with a negotiated transaction between CBI and Praxair which will serve the
interests of all our shareholders."
"We continue to believe there is a strong strategic fit between the two
companies," Lichtenberger added. "I hope that the CBI Board will recognize
the significant benefits of our offer to CBI shareholders."
Praxair is the largest industrial gases company in North and South America,
and one of the largest worldwide, with 1994 sales of $2.7 billion. The
company produces, sells and distributes atmospheric, process and specialty
gases, and high-performance surface coatings. Praxair is a leader in the
commercialization of new technologies that bring productivity and
environmental benefits to a diverse group of industries.
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