SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934
(Amendment No. 1)
_______________
CBI INDUSTRIES, INC.
(Name of Subject Company)
CBI INDUSTRIES, INC.
(Name of Person(s) Filing Statement)
Common Stock, par value $2.50 per share
(and Associated Preferred Stock Purchase Rights)
(Title of Class of Securities)
_______________
124800 10 3
(CUSIP Number of Class of Securities)
_______________
Charles O. Ziemer, Esq.
Senior Vice President and General Counsel
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
(708) 572-7000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf
of the Person(s) Filing Statement)
_______________
With a copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6150
(212) 403-1000<PAGE>
This Amendment No. 1 amends and supplements the
Solicitation/Recomendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") filed with the Securities and Exchange Com-
mission (the "Commission") on November 16, 1995, by CBI Indus-
tries, Inc., a Delaware corporation (the "Company" or "CBI"),
relating to the tender offer made by PX Acquisition Corp.
("P Sub"), a Delaware corporation and a wholly owned subsidiary
of Praxair, Inc., a Delaware corporation ("Praxair"), to pur-
chase all outstanding shares of Common Stock, including the
associated Rights issued pursuant to the Amendment and Restate-
ment dated August 8, 1989 of a Rights Agreement dated as of
March 4, 1986, between the Company and First Chicago Trust Com-
pany of New York, as Rights Agent (the "Rights Agreement") at a
price of $32.00 per Share, net to the seller in cash, 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 (which together constitute the "Praxair Offer"), as
disclosed in a Tender Offer Statement on Schedule 14D-1 filed
by P Sub and Praxair with the Commission on November 3, 1995,
and as subsequently amended (the "Schedule 14D-1"). Unless
otherwise indicated, all capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Schedule
14D-9.
ITEM 3. IDENTITY AND BACKGROUND.
(b) On November 16, 1995, Mr. Charles O. Ziemer, Senior
Vice President and General Counsel of the Company received a
letter from Mr. David H. Chaifetz, Vice President, General
Counsel and Secretary of Praxair, requesting clarification re-
garding certain matters relating to the CBI Salaried Employee
Stock Ownership Plan (1987), which letter was filed as Exhibit
(a)(13) to Amendment No. 3 to the Schedule 14D-1. Mr. Ziemer
responded to Mr. Chaifetz's request by letter dated November
21, 1995, a copy of which is filed herewith as Exhibit 31.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
On November 17, 1995, Mr. John E. Jones, Chairman, Presi-
dent and Chief Executive Officer of the Company received a let-
ter from Mr. H. William Lichtenberger, Chairman and Chief Ex-
ecutive Officer of Praxair, requesting the confidential infor-
mation being provided to other interested parties. On November
20, 1995 the Company sent to Praxair a draft confidentiality
agreement, which the Company indicated it was prepared to enter
into with Praxair, containing terms no less favorable to
Praxair than those contained in the confidentiality agreements
entered into with other interested parties. Such draft contem-
plates the provision of confidential information by the Company<PAGE>
to Praxair and provides, among other things, that for a two-
year period Praxair would not, unless requested in writing in
advance by the Company, acquire, or agree, offer, seek or pro-
pose to acquire, any of the Company's assets, businesses or se-
curities.
On November 17, 1995, Praxair amended its complaint
against the Company originally filed on October 30, 1995, which
amended complaint was filed as Exhibit (a)(15) to Amendment No.
5 to the Schedule 14D-1. The amended complaint seeks an in-
junction compelling the Board to include Praxair and P Sub in
the Company's efforts to maximize CBI stockholder value and to
provide Praxair access to all information and CBI individuals
that the Company provides to other third parties in connection
with its exploration of alternatives to the Praxair Offer.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended and supplemented by adding
thereto the following:
Exhibit 14 CBI 1994 Restricted Stock Award Plan (refiled to
include page inadvertently omitted).
Exhibit 31 Letter to David H. Chaifetz, Vice President,
General Counsel and Secretary of Praxair, from
Charles O. Ziemer, Senior Vice President and
General Counsel of the Company, dated November
21, 1995.<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its know-
ledge and belief, the undersigned certifies that the informa-
tion set forth in this statement is true, complete and correct.
CBI INDUSTRIES, INC.
Dated: November 21, 1995 By: /s/ John E. Jones
John E. Jones
Chairman, President and
Chief Executive Officer<PAGE>
EXHIBIT INDEX
Exhibit 14 CBI 1994 Restricted Stock Award Plan (refiled to
include missing page).
Exhibit 31 Letter to David H. Chaifetz, Vice President,
General Counsel and Secretary of Praxair, from
Charles O. Ziemer, the Company's Senior Vice
President and General Counsel, dated November
21, 1995.
EXHIBIT 14
TABLE OF CONTENTS
CBI 1994 RESTRICTED STOCK AWARD PLAN
(EFFECTIVE MARCH 9, 1994)
1. PURPOSE............................................ 1
2. DEFINITIONS........................................ 1
Award...................................... 1
Award Date................................. 1
Board...................................... 1
Committee.................................. 1
Common Stock............................... 1
Company.................................... 1
Disability................................. 1
Effective Date............................. 1
Involuntary Termination.................... 1
Participant................................ 1
Retirement................................. 2
Subsidiary................................. 2
3. COMMON STOCK SUBJECT TO PLAN....................... 2
4. ELIGIBILITY AND AWARDS............................. 2
4.1 ELIGIBILITY........................ 2
4.2 MAKING OF AWARDS................... 2
4.3 FORM OF AWARD...................... 4
5. RESTRICTIONS ON AWARDS............................. 5
5.1 RIGHTS OF PARTICIPANTS AS
SHAREHOLDERS..................... 5
5.2 CHANGES IN CAPITALIZATION.......... 5
5.3 IMPOSITION OF RESTRICTIONS......... 6
5.3.1 TRANSFER RESTRICTIONS.............. 6
5.3.2 FORFEITURES........................ 6
5.4 RELEASE OF RESTRICTIONS............ 6
5.5 EFFECT OF DEATH PRIOR TO
RELEASE OF RESTRICTIONS.......... 7
5.6 WITHHOLDING OF SHARES.............. 7
6. MISCELLANEOUS...................................... 8
6.1 ADMINISTRATION..................... 8
6.2 LIMITATION......................... 8
6.3 AMENDMENT AND TERMINATION.......... 8
6.4 EFFECTIVENESS OF THE PLAN.......... 8<PAGE>
CBI 1994 RESTRICTED STOCK AWARD PLAN
(EFFECTIVE MARCH 9, 1994)
1. PURPOSE. The purpose of this CBI 1994 Restricted
Stock Award Plan (the "Plan") is to provide an incentive for
Participants to contribute to the continued growth and profit-
ability of the Company by encouraging stock ownership. The
Plan is intended to further the interest of the Company by
enabling it to attract and retain the services of highly quali-
fied and motivated persons to serve the Company and its Subsid-
iaries.
2. DEFINITIONS. As used in the Plan, the following
terms shall have the following meanings:
AWARD - The grant of Common Stock subject to the restric-
tions and pursuant to the terms of the Plan.
AWARD DATE - The date on which an Award is made by the
Committee as provided by paragraph 4.2 below.
BOARD - The Board of Directors of the Company, as from
time to time constituted.
COMMITTEE - The Compensation Committee of the Board, no
member of which shall be eligible to participate in the
Plan while serving as such member or in the prior calendar
year.
COMMON STOCK - Common Stock, $2.50 par value per share, of
the Company.
COMPANY - CBI Industries, Inc., a Delaware corporation.
DISABILITY - That condition of a Participant, including
but not limited to a physical or mental condition, which
makes a Participant unable to perform the regular duties
of that Participant's employment, as determined by the
Committee, provided, however, that Disability shall not
consist of a condition resulting from a cause which the
Committee has excluded.
EFFECTIVE DATE - March 9, 1994, subject to shareholder
approval.
INVOLUNTARY TERMINATION - Termination of employment as
described in paragraph 5.4(a)(iv) below.
PARTICIPANT - An employee or former employee who has
received an Award under the Plan.
-1-<PAGE>
RETIREMENT - The termination of employment of a Partici-
pant with the Company and all Subsidiaries after qualify-
ing for any retirement as defined under the terms of any
qualified defined benefit pension plan sponsored by the
Company or any Subsidiary in which such Participant also
participates, or, if not participating in such a plan,
then after attaining such age and service as would qualify
for retirement under the terms of the CBI Pension Plan, as
amended, or such earlier termination with the Company's
consent and as may be determined by the Committee to con-
stitute early retirement, provided, however, that no ter-
mination of such employment by reason of dishonesty, fraud
or breach of trust against the Company or any of its Sub-
sidiaries or affiliates, as determined by the Committee,
shall constitute Retirement.
SUBSIDIARY - Any corporation of which more than 50% (by
number of votes) of the voting stock is owned by the Com-
pany and/or one or more corporations which are themselves
Subsidiaries of the Company.
3. COMMON STOCK SUBJECT TO PLAN. There will be reserved
for issue upon the granting of Awards during the term of the
Plan an aggregate of 1,250,000 shares of Common Stock, as
adjusted by the Committee as required to reflect any stock
dividend, stock split, reclassification or similar change in
capitalization. If any such adjustment shall result in a frac-
tional share such fraction shall be disregarded. Upon the
granting of an Award, the number of shares reserved for Award
shall be reduced by both the number of shares so awarded and
the number of shares forfeited to the Company hereunder.
Awards may be made from authorized but unissued shares or from
treasury shares. All authorized but unissued shares awarded
hereunder shall be fully paid and nonassessable shares.
4. ELIGIBILITY AND AWARDS.
4.1. Eligibility. All employees (including offic-
ers, but not directors unless also employees) of the Com-
pany and of its present and future Subsidiaries within
such levels of supervisory or management responsibility,
and such other key salaried employees, as designated or
approved from time to time by the Committee are eligible
to be Participants.
4.2 MAKING OF AWARDS. Subject to the express provi-
sions of the Plan, the Committee shall in its sole discre-
tion determine the employees who may receive Awards
pursuant to the Plan. In making such determinations, the
Committee shall take into account the recommendations of
the management of the Company and the nature of the ser-
vices rendered by the respective employees, their present
-2-<PAGE>
and potential contributions to the Company's success and
such other factors as the Committee in its discretion
shall deem relevant. Any employee may not receive Awards
more frequently than once in each calendar year.
(a) The size of a Participant's Award shall be
determined in the following manner:
At the beginning of each fiscal year of the
Company, the Committee shall approve and record spe-
cific goals of performance for the Company and, as
appropriate, each of its primary operating Subsidiar-
ies to be achieved by the end of that current fiscal
year, which goals shall be based on operating income
(before taxes) as a return on net assets for the Com-
pany or Subsidiary, or a combination thereof, as
appropriate. After the close of the fiscal year, the
Committee will certify the level of performance
achieved as compared to the goals established at the
beginning of the fiscal year.
At the same time as the performance goals
described above are established, the Committee shall
approve specific targets of numbers of shares of Com-
mon Stock ("Target Award"), either by individual Par-
ticipant or a class of Participants, which shall
become Awards following the end of such fiscal year
only if the specified performance goals are achieved
by the Company. No Award shall be made until and
unless the Committee shall certify that the perfor-
mance goals have been achieved for a fiscal year for
which Target Awards have been approved, or the extent
to which such goals have been achieved. The date on
which the Committee makes such certification shall be
the Award Date for a fiscal year for those portions
of Awards for which the number of shares of Common
Stock is fixed based on that performance, as
described below. At the same time that the perfor-
mance goals are established by the Committee, the
Committee may also approve that Awards for the fiscal
year under consideration, if any, shall be made in an
amount more or less than the Target Award, but in no
case greater than 200% of the Target Award, on the
basis of a scale approved by the Committee corre-
sponding to a proportion of the performance goal
actually achieved.
Awards determined for a given fiscal year shall
be allocated (i) 50% to the year for which perfor-
mance is measured, and this portion of an Award shall
not be subject to increase or decrease, (ii) 25% to
-3-<PAGE>
the first fiscal year following ("First Year
Awards"), and (iii) 25% to the second fiscal year
following ("Second Year Awards"). First Year Awards
and Second Year Awards shall be further subject to
increase or decrease, each one time only, in the same
manner and on the same scale, if applicable, as the
amount of the Target Award may be increased or
decreased for the fiscal year to which the First Year
Awards and Second Year Awards are allocated.
(b) In the event of Retirement or Involuntary Termi-
nation of a Participant after the first quarter of a
fiscal year, or the death or Disability of a Participant
on any date, an Award for such Participant relating to the
fiscal year of the date of such event ("Final Year") shall
be made, determined as follows: The Target Award, if any,
for such Participant for the Final Year shall be pro-rated
for that portion of the Final Year ending on the date of
the event and the achievement of the performance goal for
determining the amount of the Award for the Final Year and
the adjustment of any First Year Awards and Second Year
Awards allocated to the Final Year, if any, shall be mea-
sured, and certified by the Committee as appropriate, as
of the end of the calendar quarter immediately preceding
or coinciding with the date of the event, using the same
number of calendar quarters immediately preceding the date
of the event as corresponds to the period of time over
which the performance goal established by the Committee
for the Final Year is being measured. Any Second Year
Awards allocated to a fiscal year subsequent to the Final
Year shall not be subject to increase or decrease, and
shall become part of the Award for the Final Year. In the
event of Retirement or Involuntary Termination of a Par-
ticipant during the first quarter of a fiscal year, the
Participant shall not be eligible to receive a Target
Award for the Final Year, but all First Year Awards and
Second Year Awards allocated to the Final Year and any
Second Year Awards allocated to a fiscal year subsequent
to the Final Year shall not be subject to increase or
decrease and shall become part of the Award for the Final
Year.
(c) No more than 50,000 shares shall be issued to
any person in any fiscal year.
4.3 FORM OF AWARD. As soon as reasonably practi-
cable after making a determination as provided in para-
graph 4.2 above, the Committee or its designee shall
advise the Participant in writing of the making of the
Award, the number of shares not subject to increase or
decrease, the amount of First Year Awards and Second Year
-4-<PAGE>
Awards still subject to increase or decrease, the restric-
tions on any shares and incidents of forfeiture thereof,
and any other terms and conditions relating thereto;
except, however, that in the case of any Award to the
Chief Executive Officer of the Company, the Committee
shall first submit such Award to the Board, which in its
discretion may disapprove or reduce the Award.
5. RESTRICTIONS ON AWARDS.
5.1 RIGHTS OF PARTICIPANTS AS SHAREHOLDERS. Shares
awarded hereunder which are not subject to increase or decrease
in accordance with this Plan shall forthwith be duly issued and
identified on the books of the Company in the Participant's
name as of an Award Date, as determined herein. The Partici-
pant shall thereupon be a shareholder with respect to all such
shares and shall have all the rights of a shareholder with
respect to all such shares, including the right to vote such
shares and to receive all dividends and other distributions
(subject to the provisions of paragraph 5.2 below) paid with
respect to such shares; provided, however, that such shares
shall be subject to the restrictions hereinafter described, and
to such additional or more severe restrictions (including more
severe provisions relating the lapsing of restrictions) as may
be imposed by the Committee in approving any Target Awards.
In aid of such restrictions, shares issued as of an
Award Date shall be held by the Company in its control for the
account of such Participant until such restrictions lapse as
provided in paragraph 5.4 below or such shares are theretofore
forfeited to the Company as provided by paragraph 5.3 below.
No Participant shall be considered to be a shareholder with
respect to any part of an Award which is still subject to
increase or decrease in accordance with this Plan.
5.2 CHANGES IN CAPITALIZATION. In the event that,
as the result of a stock dividend, stock split, reclassifica-
tion or similar change in capitalization, the Participant
shall, as the owner of shares subject to restrictions here-
under, be entitled to new or additional or different shares of
stock or securities, the certificate or certificates for, or
other evidences of, such new or additional or different shares
or securities, shall also be held by the Company in its control
for the account of such Participant as provided in paragraph
5.1 above. Any allocated portion of an Award subject to
adjustment as described in paragraph 4.2 above shall be
increased or decreased in the same manner as shares already
issued to a Participant subject to restrictions. All provi-
sions of the Plan relating to restrictions and lapse of
restrictions herein set forth shall thereupon be applicable to
such new or additional or different shares or securities to the
extent they were issued to a Participant; provided, however,
-5-<PAGE>
that if the Participant shall receive rights, warrants or frac-
tional interests in respect of any of such shares, such rights
or warrants may be held, exercised, sold or otherwise disposed
of, and such fractional interests may be settled, by the Par-
ticipant free and clear of the restrictions hereafter set
forth.
5.3 IMPOSITION OF RESTRICTIONS. Each share issued
to a Participant under the Plan shall be subject to the follow-
ing restrictions except to the extent that such restrictions
have lapsed pursuant to paragraph 5.4 below:
5.3.1 TRANSFER RESTRICTIONS. None of such shares
shall be sold, exchanged, transferred, pledged,
hypothecated, or otherwise disposed of in any manner,
whether voluntarily or involuntarily.
5.3.2 FORFEITURES. All of such shares issued, and
all shares subject to Awards, shall be forfeited to
the Company without notice immediately upon the
occurrence of any of the following events:
a. The termination of the employment of the
Participant with the Company and all Subsidiaries for
any reason other than Retirement, Disability, Invol-
untary Termination or death, or
b. The performance of services by the Partici-
pant, while an employee of the Company or any Subsid-
iary, as an employee, consultant or independent
contractor for, or the acquisition of an ownership
interest in excess of five percent (5%) in, any com-
petitor of the Company or competitor of any Subsid-
iary without the express written consent of the
Company, or
c. An attempt to transfer or cause to transfer
such shares, whether voluntarily or involuntarily, in
violation of paragraph 5.3.1 above, or
d. A violation of such additional or more
severe restrictions which may be imposed by the Com-
mittee pursuant to paragraph 5.1.
5.4 RELEASE OF RESTRICTIONS. Subject to any adjust-
ments required by paragraph 4.2(b) above, the restrictions set
forth in paragraph 5.3 above on shares issued to Participants
under the Plan, to the extent such shares have not been for-
feited pursuant to paragraph 5.3 above, shall lapse:
-6-<PAGE>
(a) on the first to happen of (i) the date of the
Participant's death, (ii) the termination of the Partici-
pant's employment by reason of his Retirement or Dis-
ability, (iii) termination of employment for any reason
other than wilful and material actions causing direct and
substantial damage to the Company or its Subsidiaries or
affiliates, or any termination of the Plan, throughout the
three-year period following a "change of control", as
defined in the CBI Pension Plan, (iv) involuntary termina-
tion of employment pursuant to a program of workforce
reduction, as determined by the authorized officers of the
Company, and (v) the fifth anniversary of the beginning of
the fiscal year for which a Target Award is approved, as
to all shares issued pursuant to such Target Award, as the
same may be increased or decreased in accordance with the
Plan; or
(b) pursuant to such additional or more severe
restrictions imposed by the Committee pursuant to para-
graph 5.l.
5.5 EFFECT OF DEATH PRIOR TO RELEASE OF RESTRIC-
TIONS. Should a Participant die, all shares to be issued by
the Company with respect to such Participant under this Plan
shall be transferred on the books of the Company and issued to
such beneficiary or beneficiaries as have been effectively
designated by the Participant or, if none, then to the deceased
Participant's surviving spouse or, if none, then to the
Participant's lawful descendants, per stirpes as defined by
common law, or, if none, then to the deceased Participant's
estate. Any such transfer shall be made effective as of the
date of death of the Participant. To be effective, the
designation of such beneficiary must be filed with the
Committee or its designee in such written form as it requires
and may include secondary, successive or contingent
beneficiaries. Any Participant may change a beneficiary
designation at any time by filing with the Committee or its
designee a new beneficiary designation meeting the above
requirements. The determination of the Committee as to the
identity of a beneficiary, or whether a beneficiary is living
or dead, pursuant to any determinations of rights under this
Plan shall be conclusive and binding on all concerned.
5.6 WITHHOLDING OF SHARES. To the extent the
receipt of shares pursuant to a lapse of restrictions is sub-
ject to the withholding of any income or employment taxes by
the Company for which the Company requires reimbursement from
the recipient, the recipient may elect to reimburse the Company
with shares withheld from the shares to be received, or cash,
or a combination of such shares and cash, of sufficient value
-7-<PAGE>
to make such reimbursement. Any such withholding or reimburse-
ment shall comply with all applicable governing laws and
regulations.
6. MISCELLANEOUS.
6.1 ADMINISTRATION. Subject to the express provi-
sions of the Plan, the Committee shall have complete authority
to interpret the Plan, to prescribe, amend and rescind rules
and regulations relating to it, and to make all other
determinations necessary or advisable for the administration of
the Plan. The Committee's determinations on the matters
referred to herein shall be final and conclusive.
6.2 LIMITATION. Nothing in the Plan or in any Award
shall confer on any employee the right to continue in the
employ of the Company or any of its Subsidiaries nor interfere
in any way with the right of the Company or its Subsidiaries to
terminate the employment of that employee at any time.
6.3 AMENDMENT AND TERMINATION. The Board may
suspend or terminate the Plan, or amend the Plan in such
respect as it shall deem advisable, provided, however, that
such amendment shall not, without the consent of the Partici-
pant to whom any Award shall theretofore have been granted
under the Plan, adversely affect the rights of such Participant
under such Award, including shares which may still be subject
to increase or decrease as provided under the Plan, and further
provided that such amendment shall not change the maximum num-
ber of shares available under the Plan or available for any one
Participant.
6.4 EFFECTIVENESS OF THE PLAN. The Plan shall
become effective on March 9, 1994. No Awards shall be made
under the Plan after April 30, 2000, nor shares issued under
the Plan after April 30, 2002 when shares covered by First Year
Awards and Second Year Awards based on the last Target Award
under the Plan are no longer subject to increase or decrease,
or such earlier date as the Plan may have been terminated pur-
suant to paragraph 6.3.
-8-
EXHIBIT 31
[CBI INDUSTRIES, INC. LETTERHEAD]
November 21, 1995
VIA TELECOPY
David H. Chaifetz, Esq.
Vice President, General Counsel
and Secretary
Praxair, Inc.
39 Old Ridgebury Road
Danbury, CT 06810-5113
Dear Mr. Chaifetz:
Your letter of November 16, 1995 was apparently writ-
ten prior to your receiving or reviewing our Solicitation/
Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-
9") filed with the Securities and Exchange Commission on
November 16, 1995.
Under the plan document relating to the CBI Salaried
Employee Stock Ownership Plan (1987) (the "ESOP"), which is
filed as Exhibit 15 to the Schedule 14D-9, in the event of a
tender offer, the Trustee of the ESOP is to seek, and follow,
instructions from ESOP participants to whom Company Stock (as
defined) has been allocated as to whether such Company Stock
should be tendered. Under the ESOP plan document, allocated
Company Stock as to which no instructions are received are to
be tendered or not tendered as the Trustee determines to be in
the best interests of affected ESOP participants. Under the
ESOP plan document, unallocated shares of Company Stock are to
be tendered in the same proportion as are allocated shares of
Company Stock, with that portion of the unallocated shares that
corresponds to the portion of the allocated shares as to which
the Trustee has received no instructions being tendered or not
tendered as the Trustee determines to be in the best interests
of ESOP participants.
Very truly yours,
/s/ Charles O. Ziemer
Charles O. Ziemer, Esq.<PAGE>
cc: LaSalle National Trust, N.A.
Neil T. Anderson, Esq.
Sullivan & Cromwell
Gregory K. Brown, Esq.
Oppenheimer, Wolff & Donnelly
